Originally posted 2011-03-11 17:23:32. Republished by Blog Post Promoter
Here’s a roundup of what other people are saying about the decision in Network Automation, Inc. v. Advanced System Concepts, Inc. involving keyword advertising using other folks’ trademarks (a form of the dreaded “diversion“!) and perhaps implicating secondary liability for trademark infringement:
- Marty Schwimmer: “‘Forget it Jake, It’s the Ninth Circuit’ – I’m stealing that joke from Prof Tushnet’s critique of the Network Automation keyword case. I agree with much of her analysis, however I disagree with her (and this panel’s) view of channels of trade as a LoC factor, but that’s an argument for another day. Also, check out Prof. Goldman’s discussion.”
We’ve had surprisingly few appellate decisions involving keyword advertising generally, and almost none involving trademark owners’ lawsuits against keyword advertisers (as opposed to suing keyword sellers like search engines). On that basis alone, this ruling is important. The case is also remarkable because the opinion, written by highly regarded Judge Wardlaw, gets so many things right.Perhaps that sounds like damning with faint praise, but the reality is that the Ninth Circuit’s Internet trademark law has become horribly tortured due to deeply flawed opinions like the 1999 Brookfield case. This opinion deftly cuts through the accumulated doctrinal cruft and lays a nice foundation for future Internet trademark jurisprudence.The only sour note is that the opinion makes some unnecessary and empirically shaky “presumptions”–exactly the kind of unfortunate appellate court fact-finding that got the Ninth Circuit into trouble into the first place. Still, given how this opinion could have turned out, I still give this opinion very high marks.