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The Dangers of Dynamic Keyword Insertion

By Peter Kent

In past articles in this newsletter on trademark infringement related to pay-per-click (“PPC”) keyword triggers, I wrote about how advertisers may intentionally use trademarked keywords to trigger the display of PPC ads (and gave my opinion ' and that of at least some courts ' that such use is not a trademark infringement). (See, “Trademarked Keywords Become Legitimate PPC Targets,” March 2011, and “The PPC Trademark Battle Continues,” October 2009.)

However, there's another aspect of PPC advertising in which keywords play a part ' and where such keyword use is more likely to be considered trademark infringement: the use of keywords within the text of an ad itself. After all, if the word Nike appears in an ad leading to an online store that sells running shoe brands other than Nike, then Nike might be forgiven for considering such use trademark infringement.

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