ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising
When you type a word like "Chevrolet" into an Internet search engine, you aren't necessarily looking for the nearest dealership. You might be looking for independent information about Chevy's business practices, quality, compliance with emissions standards, or even information about how Chevrolets match up against their competitors. One of the best ways for competitors, critics and others to get that information to you is to place ads that use Chevrolet's trademarks as keywords, so that this information pops up when you run the search. That's why EFF has worked hard to stop efforts to use trademark law to impede keyword advertising. Through lawsuits and legislation -- like a law that was proposed in Utah -- trademark owners have tried to limit consumer access to information and block the ability of critics from using keywords to advertise their point of view, stimulate debate and mobilize support.
Now there is a quiet move in the American Bar Association's Intellectual Property Section to make the legal defense of such keyword advertising more difficult. An ABA committee is currently debating four resolutions on the issue, all of which have serious flaws, at best, and anti-consumer slants, at worst. And, some members of the committee are trying to keep this discussion from public view. The full analysis by Eric Goldman and myself shows why these efforts -- not to mention the committee's attempts to prevent public scrutiny of those efforts -- are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services.