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Ninth Circuit Vacates Injunction In Advertising Keywords Case

By Alison Frankel

Remember U.S. Supreme Court justice Potter Stewart's famous line about hardcore pornography? Stewart said it was tough to define, “but I know it when I see it.” The quip came to mind after a ruling last month by the U.S Court of Appeals for the Ninth Circuit in a trademark infringement case involving Internet advertising keywords. In essence, the Ninth Circuit concluded that there's no strict standard for determining infringement in the Internet age, so judges have to know it when they see it.

In a 35-page ruling, a three-judge Ninth Circuit panel vacated an injunction blocking a software company called Network Automation from using the keyword ActiveBatch to direct search-engine users to its products, even though ActiveBatch is the trademarked name of software sold by Network Automation's direct rival, Advanced Systems Concepts. The panel (appellate judges Stephen Trott and Kim McLane Wardlaw and Oregon federal district court judge Michael Mosman, sitting by designation) concluded that two long-established Ninth Circuit tests for trademark infringement couldn't be applied with “excessive rigidity” in evaluating online violations. Network Animation, Inc. v. Advanced Systems Concepts, Inc., D.C. No. 2:10-cv-00484-CBM-CW (9th Cir., March 8, 2011). (The opinion can be found at http://amlawdaily.typepad.com/networkautovadvancedsystems.pdf.)

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