Document Type


Publication Date

Winter 2005


Emerging trademark law doctrines have allowed trademark owners to excise socially beneficial content and to take unprecedented control over their channels of distribution. Without limits, trademark law has the capacity to counterproductively destroy the Internet's utility for everyone.

Part I of the Article provides a brief overview of the Internet search process. Parts II-IV consider Internet search from three perspectives. Part II considers Internet search from the searcher's perspective, concluding that one cannot infer searchers' objectives from the keywords they choose. Part II considers Internet search from the web publisher's perspective. Part IV considers Internet search from the search provider's perspective, explaining that search providers, not web publishers, decide what searchers see. Part IV also explains that all Internet technologies are converging to use keywords to match searchers with content. Thus, historical distinctions between the domain name system, directories, and search engines are collapsing.

Part V summarizes trademark law and then provides a theoretical framework to distinguish beneficial and misappropriative uses of trademarks. The framework helps explain why trademark law doctrines like "initial interest confusion" are misguided. Part VI offers three concrete solutions: (1) courts should consider the search process stage where searchers see a trademark being used; (2) the law should modernize the test used to determine consumer confusion, most conspicuously by considering content relevancy in any infringement analysis; and (3) search providers should have both common law and statutory safe harbors. The Article concludes with a brief consideration of how keyword-based search benefits society.

Included in

Internet Law Commons



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