March 11, 2008

It was recently announced that Utah has amended its state law that limited the ability for internet search engines from using trademarked items as the basis for triggering online advertisements. As summarized by the Google Public Policy Blog article (link below), last year the Utah State legislature passed a law “that essentially prohibited search engines like Google from allowing trademarks from being used as keywords to trigger ads,” noting that, “at the time, this law ran counter to the precedent of federal trademark law, which has consistently upheld comparative advertising as being good for consumers, competition and free speech.” According to the ClickZ article (link below), Utah’s revised Trademark Protection Act was passed late last Wednesday night, in part because as noted by Utah State Senator Dan Eastman, “[t]he state didn’t want to get into a lawsuit” against a number of large search engine companies. As noted by ClickZ, “[t]he law adopted last year bans advertisers from using the trademarked terms of their competitors to target ads to Utah users, and particularly affects search marketers,” and “[t]he search firms and many search industry execs have argued the law as originally written was unconstitutional and established an unprecedented set of rights for Utah trademark owners inconsistent with traditional trademark law recognized throughout the U.S.” Amendments to the law removed the punitive damages provisions and provisions regarding enforcing the law against companies using their competitor’s trademarks in their advertisements, but retain provisions allowing for civil actions to proceed. As summarized by the recent Search Engine Land article (link below), “[t]his reversal now puts Utah in sync with the precedent set forth by the federal trademark law,” and “[i]n short, you can now legally bid on trademarked terms in Utah, assuming you comply with the search engine's trademark policy in your country.”

Google Public Policy Blog Article: LINK
Search Engine Land Brief Article: LINK
ClickZ Article: LINK

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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