"Internet Advertising Update," Amanda H. Wilcox, Esq.

Keyword advertising remains a controversial practice, as there is no consensus in the federal courts as to whether it should be regarded as trademark infringement or as fair competition that provides useful alternatives to consumers. Recently, courts within the 1st and 6th Circuits have joined the 9th and other circuits in holding that keyword use is trademark use under the Lanham Act. This leaves the 2nd Circuit as the only circuit to consistently hold that keyword use is not trademark use.