The ruling supports in the US what has become known as “keying”,
a practice by which a search engine offers advertisers the ability
to display specific banner ads whenever users enter particular
search terms, including trade marks. Research company Jupiter
Communications has estimated that portals make up to 30% of their
advertising revenues from keyword banner ads.
The decision dismissed a case brought by Playboy Enterprises
against the search engine company Excite and Netscape
Communications, a licensee of Excite. Playboy sued the companies
because the search engines displayed banner ads from competing
pornography companies whenever its trade marks “playboy” or
“playmate” were used as search terms.
A lawyer for Playboy said the company will appeal, adding that
the judge’s reasoning “essentially legitimises” some sales of trade
marks.
Judge Stotler said that it was not clear whether there was
“trade mark use” within US law, and even if there was such use,
there could be no finding of infringement because there was no
evidence that consumers confused Playboy products with the services
of Excite or Netscape.
