Searching for a Solution: The Lanham Act's “Use in Commerce” Requirement in Search Engine Keyword Advertising Cases

Internet advertising generated $16.8 billion in revenue in 2006, an increase of 34% from the prior year. This advertising boom affects both businesses and consumers. For consumers, it means wading through hundreds of pop-up advertisements, in-site advertisements, or search engine “sponsored links” during routine Web surfing and shopping. For businesses, it entails spending millions of dollars to advertise in a relatively new form of media. One of the largest components of Internet advertising is search engine keyword advertising. Search engine keyword advertising, which represents more than 40% of all Internet advertising in the United States, is an enormous source of income for Internet search engine companies. In this type of advertising, a business will purchase a specific term from a search engine as a trigger for an advertisement. When a computer user inputs this term into the search engine, the search engine will generate results according to the search engine parameters. In addition, the computer user’s input will trigger an advertisement purchased by the business that is linked to this inputted term. For example, Kodak could purchase the term “cameras” from Yahoo!, a popular Internet search engine. Upon a search of the term “cameras” by a computer user, in addition to the normal list of results related to the inputted term, Yahoo! will also present an advertisement by