Keyword Advertising Is A Trademark Infringement Or Not

In the era of internet, keyword advertising become one of the important components of the social network. In simple words, ”keyword advertising” is a “form of advertising on the Internet in which a business pays to have an advertisement for a website to appear on a consumer’s computer screen when the consumer uses a particular word or phrase to search for information on the internet, they lay a very important role in advertising and marketing of various businesses. Trademark Infringement is like a problem created because of wrong practices and confusion.

But the problem arises when a word, which is a trademark of a third party becomes a keyword for a person or a company that is purchased in order to advertise his product. In such a case, a consumer is likely to get confused with such keyword, as in if a person is searching a word which is a trademark of a particular third party and is lead towards the advertisement of the keyword purchaser, is that considered to be a trademark infringement.

The problem that is posed by the trademark owner is that this practice of buying keywords results in confusion among the consumers. As a consequence, many of the trademark owners have filed hundreds of cases on their competitors buying such keywords. They claim that the Lanham Act of USA prohibits any use in commerce of a registered mark or imitation thereof that “is likely to cause confusion, or to cause mistake, or to deceive.”Therefore, such a practice is the practice of trademark infringement.

Initial Interest Confusion Under Trademark Infringement

The doctrine of initial interest confusion says that the confusion occurs prior to purchase. A consumer might be confused at the starting point of his search as a result of the misuse of the trademark by the keyword purchaser.

Thus, the factor that plays a most important role in determining that whether there is an infringement or not is the concept of ‘Initial Interest Confusion.’

The court while giving importance to the protection of the trademark owner  noted that “the use of another’s trademark in a manner calculated ‘to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement.’’

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Factors that courts typically consider in determining whether there is a likelihood of confusion include:

  1. The amount of similarity between the goods and services and trademark;
  2. The strength of the plaintiff’s mark;
  3. Evidence of confusion caused to consumers;
  4. The intention of the defendant in using its mark;
  5. The amount of reasonable care that is exercised by the consumer.

The courts have been uncertain about this concept. In many cases, the court has held that such a practice of keyword advertising is normal competition if it does not result in customer confusion.

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