Keyword Advertising: Why All the Fuss?

Abstract

Keyword advertising is among the fastest growing and controversial forms of online advertising. Keyword advertising, sometimes called keying, enables advertisers to target individuals with certain interests by linking advertisements to pre-identified keywords (Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 [9 th Cir. 2004]). Keywords are the search terms used when querying a search engine (There is no standard definition of the term, neither is there a defined set of keywords that are available. The Search Engine Marketing Professional Organization, for example, defines keyword in the same manner as search term, as The words [or word] a searcher enters into a search engine's search box. Also used to refer to the terms a search engine marketer hopes a particular page will be found for. Also called keywords, query terms or query. See Search Engine Optimization & Marketing Glossary, at http://www.sempo.org/glossary.php#terms [last visited February 26, 2005]). Any term that may be entered into a search engine can be a keyword. Keyword advertising is big business. It is a major driver of search engine revenues. The business practices related to this type of advertising are being hotly contested in the courts both in the United States and in the European Union. The legal issues are deceptively complex and, as is so often the case with the Internet, require that traditional principles of intellectual property law be applied in new and rapidly changing contexts. Keyword advertising straddles the line between trademark and unfair competition law and business marketing in the highly competitive online world. On one level keyword advertising presents another iteration of a recurring theme: has Internet practice outstripped the law? Is advertising linked to another party's keyword-trademark an acceptable use, or is it another case of a business model that allows one party to make money using another party's intellectual property. In the trademark law context, keyword advertising raises the possibility of revisiting the metes and bounds of trademark owners' control over the use of their trademarks. So far, the few court decisions in this area present a mixed landscape, leaving businesses that rely on keyword advertising vulnerable in the absence of definitive boundaries. Keyword advertising promises to be a major legal battle area, if not the major battle area, for at least the next few years. The future of many Internet advertising companies may depend on the results of this legal struggle. This article discusses the current state of the keyword advertising controversy in the context of the current business environment and the existing case law.