Google Search Ad Rulings Spur Rethinking of Trademark Precedent

Appeals courts that recently ruled that buying ads linked to Google searches for competitors’ names doesn’t infringe trademarks should go further and find it doesn’t even constitute a use of the marks, practitioners and at least one circuit court judge say.

Judge Roopali Desai pushed her Ninth Circuit colleagues to reject the court’s precedent that bidding on keywords is a “use in commerce” that could trigger infringement claims under the Lanham Act, calling in a concurrence for her court to meet en banc.

Roughly two decades after Google’s launch, as the search tool has become ubiquitous, consumers are less likely ...