Electronic registration mark
Encyclopedia
An electronic registration mark is a proposed category of trademark
that would restrict the use of trademarked words and phrases in online advertising.
The State of Utah
proposed this in response to trademark owners' claims that online advertisers have abused trademarked terms. Some online advertisers, particularly search engine
s, allow trademarked keywords to generate advertisements for a trademark holder’s competitors. Several corporations have sued search engines to stop this practice, claiming that it violates United States trademark law. In most of these cases, courts have ruled that traditional trademark law, as currently written, does not restrict advertisers’ ability to use trademarked terms to trigger advertisements.
The Utah Trademark Protection Act created the electronic registration mark. Under this now defunct law, trademark holders could have restricted the use of its registered trademarks to generate advertisements for products that compete directly with the trademarked product. The owner of the mark could have sought redress from two parties: The competitor that purchased the advertisement, and the website that displayed the keyword-generated advertisement. This law applied only to internet pages viewed within the State of Utah. The law had instructed the state to create a searchable database of electronic registration marks and to provide access to this database free of charge. This became Utah law in 2007 but was repealed in 2008 before implementation.
No other states have established electronic registration mark laws, and the federal government's trademark law does not clearly address how it applies to online keyword searching. Judges in France
have consistently upheld rulings that French trademark law bans the sale of trademarked search terms in keyword advertising for any website viewed from within France.
. Another issue concerns an advertiser’s ability to determine whether a web page is being viewed in Utah or elsewhere: Because of this ambiguity, the law may be vulnerable to Dormant Commerce Clause
challenges. Critics also assert that the law worsens the quality of online search results by restricting the search results that users can view. Supporters respond that trademark law has always considered trademark infringement to be a form of theft that is not protected speech, that search engines have demonstrated that they can pinpoint Internet users’ locations, and that paid advertisements are not a core component of an Internet user's experience.
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
that would restrict the use of trademarked words and phrases in online advertising.
The State of Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
proposed this in response to trademark owners' claims that online advertisers have abused trademarked terms. Some online advertisers, particularly search engine
Search engine
A search engine is an information retrieval system designed to help find information stored on a computer system. The search results are usually presented in a list and are commonly called hits. Search engines help to minimize the time required to find information and the amount of information...
s, allow trademarked keywords to generate advertisements for a trademark holder’s competitors. Several corporations have sued search engines to stop this practice, claiming that it violates United States trademark law. In most of these cases, courts have ruled that traditional trademark law, as currently written, does not restrict advertisers’ ability to use trademarked terms to trigger advertisements.
The Utah Trademark Protection Act created the electronic registration mark. Under this now defunct law, trademark holders could have restricted the use of its registered trademarks to generate advertisements for products that compete directly with the trademarked product. The owner of the mark could have sought redress from two parties: The competitor that purchased the advertisement, and the website that displayed the keyword-generated advertisement. This law applied only to internet pages viewed within the State of Utah. The law had instructed the state to create a searchable database of electronic registration marks and to provide access to this database free of charge. This became Utah law in 2007 but was repealed in 2008 before implementation.
No other states have established electronic registration mark laws, and the federal government's trademark law does not clearly address how it applies to online keyword searching. Judges in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
have consistently upheld rulings that French trademark law bans the sale of trademarked search terms in keyword advertising for any website viewed from within France.
Controversy
Critics find several flaws with electronic registration marks. They argue that restricting the keywords that advertisers can use violates the First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Another issue concerns an advertiser’s ability to determine whether a web page is being viewed in Utah or elsewhere: Because of this ambiguity, the law may be vulnerable to Dormant Commerce Clause
Dormant Commerce Clause
The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution...
challenges. Critics also assert that the law worsens the quality of online search results by restricting the search results that users can view. Supporters respond that trademark law has always considered trademark infringement to be a form of theft that is not protected speech, that search engines have demonstrated that they can pinpoint Internet users’ locations, and that paid advertisements are not a core component of an Internet user's experience.