Trademarks: 9th Circuit Identifies A New Set Of Four Factors For Adwords/Keyword-Advertising Disputes

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On March 8, 2011, the 9th Circuit issued its opinion in Network Automation v. Advanced Sys. Concepts, --- F.3d ---, 2011 WL 815806 (9thC ir. 2011), addressing whether Network’s keyword advertising through Bing and Google AdWords is likely to confuse consumers where the keywords Network purchased to trigger its advertisement included the registered trademark of Advanced, its direct competitor. Procedurally, the 9th Circuit reviewed whether the district court properly granted a preliminary injunction. It found the so-called “internet troika” of factors were a poor fit, and identified a new set of four factors it sees as most relevant to keyword advertising disputes. Focusing on these factors, and noting that the ads were set apart from actual search results and were labeled as sponsored, the 9th Circuit held the district court erroneously found a likelihood of confusion, and thus, abused its discretion in granting the preliminary injunction against Network based on its use of Advanced’s registered trademark in keyword advertising on Bing and Google.

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Published In: Art, Entertainment & Sports Updates, Civil Procedure Updates, Communications & Media Updates, Franchise Updates, Intellectual Property Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Douglas Lytle, Duckor Spradling Metzger & Wynne | Attorney Advertising

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Douglas Lytle
Duckor Spradling Metzger & Wynne

I am a shareholder at Duckor Spradling Metzger & Wynne, a San Diego-based law firm founded in 1977.... View Profile »


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