We’re beginning to get quite sick of companies claiming that having a trademark give them total control over a trademarked phrase. That’s simply not true and never has been true. Yet it shows up all the time in the ever popular lawsuits over keyword advertisements. Over and over again the courts have shown that it’s perfectly fine to use a competitor’s trademarked phrase or name as a keyword to put up a competitive ad. The latest such case highlights an important point. While many of the cases have argued that using a keyword isn’t “use in commerce,” (a key part in determining if a trademark has been violated) this ruling found that it actually was used in commerce… but it still didn’t matter because just because you own a trademark doesn’t mean you can prevent all uses of it. You can only prevent uses that are likely to confuse potential customers over who is actually selling what, or that will dilute your brand. That’s not the case when someone is simply putting up a competitive ad — and it’s nice to see a court recognize that fact.
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