Washington Journal of Law, Technology & Arts
Volume 8
| Spring 2013
| Number 5
Bidding on Trademarked Keywords in Search Engines: A Trademark Law Update
Ryan Baker
8
Wash. J.L.
Tech. & Arts
543
5/24/2013
Intellectual Property
In March 2011, the Ninth Circuit modified the list of the most relevant factors for courts to consider when evaluating whether a business’s keyword bid on a competitor’s trademark causes a likelihood of confusion under the Lanham Act. Over ten years earlier, in Brookfield Communications v. West Coast Entertainment, the Ninth Circuit had held that using a competitor’s trademark in a website metatag for the purpose of achieving a more prominent place in search results creates “initial interest confusion” for consumers in violation of the Lanham Act. TheBrookfield opinion formed what became known as the “Internet troika” test: a three-factor test for evaluating initial interest confusion in Internet cases. In a 2011 case,Network Automation, Inc. v. Advanced Systems Concepts, Inc., the Ninth Circuit reversed a lower court decision that applied the Internet troika test and held that the test fails to discern whether there is a likelihood of confusion in keywords cases. Instead, the Ninth Circuit adopted a new four-factor test for analyzing the likelihood of confusion in keyword bidding cases: (1) the strength of the mark, (2) the evidence of actual confusion, (3) the type of goods and degree of care likely to be exercised by the purchaser, and (4) the labeling and appearance of the advertisements and surrounding context on the page displaying the results. This Article examines the new four-factor test and discusses the importance of theNetwork Automation decision in affirming the legality, in most instances, of bidding on trademarked keywords in Google and Bing search engine advertising.
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Prometheus v. Mayo: Limited Implications for § 101 Jurisprudence
Jessica Belle
8
Wash. J.L.
Tech. & Arts
555
5/24/2013
Intellectual Property
The United States Supreme Court recently confirmed the importance of the patent eligible subject matter inquiry under 35 U.S.C. § 101 when assessing whether a claimed invention (“claim”) is patentable in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Court also stressed that patents will not be issued to a claim that simply recites a law of nature unless there are additional steps that ensure the claim is sufficiently tailored to not preempt further use of the natural law. The Court’s decision shocked the patent law community. However, decisions by lower courts since have demonstrated thatPrometheus has not dramatically altered the landscape of patent eligibility analysis. While the Court of Appeals for the Federal Circuit remains split as to how narrowly it will readPrometheus, its forthcoming en banc opinion in CLS Bank Int'l v. Alice Corp. Pty. Ltd.will likely unify its interpretation of the case. The patent law community correctly predicted thatPrometheus would deeply impact cases involving diagnostic medical therapeutic techniques. In the meantime, following the lower court cases is the best approach to understanding how the patent law landscape has changed since the landmark case.
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What Is the Media in the Age of the Internet? Defamation Law and the Blogosphere
Lauren Guicheteau
8
Wash. J.L.
Tech. & Arts
573
5/24/2013
Constitutional & Regulatory
As more people turn to blogs as a source of news and information, the distinction between blogs and traditional media sources has become more complex for courts dealing with First Amendment issues. In the recent case, Obsidian Finance Group, LLC v. Cox, the United States District Court for the District of Oregon held that the defendant, a blogger, was not a member of the media for the purposes of a defamation claim. The court held that media defendants must be at least negligent to be liable for defamatory publications, but because the blogger was a non-media defendant, she was strictly liable for her defamatory comments. This controversial opinion highlights the importance of the lines courts have created around the definition of “the media.” This Article will examine how courts treat bloggers in the context of special media protections. It will consider how the definition of media is being expanded to include some forms of blogging, and how this affects defamation law.
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Update Needed? Digital Downloaders and the Innocent Infringer Defense
Colin Conerton
8
Wash. J.L.
Tech. & Arts
587
5/24/2013
Intellectual Property
Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were “innocent infringers.” Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on “phonorecords” (e.g., compact discs). The Supreme Court denied certiorari in one such case, Harper v. Maverick Recording Co., but Justice Samuel Alito filed a dissent, arguing that certiorari should have been granted to address whether notice published on phonorecords applies to copyright infringement cases involving music downloaded from the Internet. Justice Alito’s dissent raises an important question: should the innocent infringer defense be unavailable as a matter of law in music downloading cases if copyright notice is available on physical media to which the downloaders may never have had access. This Article explores this issue by examining Justice Alito’s dissent and considering whether the Court should address the applicability of § 402(d) in music downloading cases.
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