Paul Alan Levy has brought my attention to this development, which he rounds up at the Consumer Law & Policy Blog:
Corynne McSherry and Eric Goldman have posted a timely joint warning about an effort within the Trademark Litigation Committee of the American Bar Association to put forward a series of resolutions that are apparently designed to revive the hitherto unsuccessful litigation efforts by trademark owners to prevent their competitors (and occasionally critics) from using keyword advertising and similar techniques to promote comparative and critical advertising on search engines. Because of the important consumer benefits from rules that protect the ability of businesses to engage in truthful comparative advertising, Public Citizen has litigated that right over the years in a line of cases running from Virginia Pharmacy Bd. v. Virginia Consumers Council to our current cases challenging bar rules that unduly limit lawyer advertising in Florida and New York. . . .
I have participated in a number of bar meetings related to this issue, and the trademark owner interests on the plaintiff side of these cases admit that newspaper ads, billboards, and product placement would not violate anybody’s trademark. They have had a great deal of trouble, however, explaining why keyword advertising is any different from a trademark perspective.
Owners of “high equity” intellectual property including trademarks want nothing more or less than ownership of trademarks as rights in gross, European-style, meaning in part that nominative fair use or any fair use at all would be written out of American trademark law — along with some pretty important parts of the First Amendment. And that, of course, is the explanation.