American Airlines has sued Google over keyword-triggered advertisements. In light of the issues discussed in the previous post, bringing this case outside of the Second Circuit was a wise move. However, even if the complained-of use of the marks is considered a “use in commerce” American Airlines still has a tough case to win. Some of the allegations may not, well… fly.

For example, in Government Employees Insurance Company v. Google, Inc., 330 F.Supp.2d 700 (E.D. Va. 2004), the court held that using another’s trademarked term as a keyword is a “use in commerce.” However, in a later proceeding, the court held that despite being a use in commerce, such use does not cause a likelihood of confusion when the mark does not appear in the text accompanying the advertisement. Government Employees Ins. Co. v. Google, Inc., No. 1:04CV507, 2005 WL 1903128 (E.D.Va. August 8, 2005). In other words, when the keyword merely triggers a result in the paid links section, and the trademarked term does not appear in the result, there is no likelihood of confusion and therefore, no trademark violation. One of American Airline’s arguments is that, upon typing in the search term “American Airlines,” links to some of its competitors appear in the paid search results with no mention of the American Airlines mark. If the Northern District of Texas adopts the Geico court’s reasoning, this type of use is fine.

Another argument that American Airlines makes is that typing in a search term containing one of its trademarks takes the user to sites selling American Airlines tickets. However, an advertiser is allowed to advertise that it sells tickets for American Airlines. Such use constitutes nominative fair use, as long as the advertiser does not say something that denotes sponsorship or endorsement, such as “We are the only authorized seller of American Airlines tickets on the web!” when it has not been so authorized.

However, there is no clear case law in the Northern District of Texas on keyword-triggered advertisements, so we’ll just have to wait and see how this case turns out.