Thursday, September 13, 2007

Utah State Law Addressing Keyword Searches Likely Unconstitutional

The Utah Trademark Protection Act, signed on March 19, 2007, prohibits the sale and use of advertising keywords registered in Utah as "electronic registration marks" if the advertising generated by the use of the keywords is for directly competitive businesses, products or services or is otherwise likely to cause confusion between the goods and services of the advertiser and the electronic registration mark owner.

According to the legislative review note accompanying the legislation,

This legislation allows the registration of an electronic mark that would
prohibit the triggering of an advertisement for a competitor. The most prominent
application for this type of mark is the use of user-entered search terms in an
Internet search engine to trigger advertisements. These triggered advertisements
are often advertisements for a competitor of an entity whose name is entered in
the search engine by a potential customer. Because of the potential impact on
interstate commerce from the state's regulation of electronic registration mark
use on Internet search engines, this legislation has a high probability of being
held to be unconstitutional.

"Google has already publicly taken the position that the act is unconstitutional," notes Wendy Robertson. Learn more from Inside Counsel.

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