Deregulating Relevancy
(August 2003)
Eric
Goldman
Marquette
University Law School
Introductory Words About TMs
w
TMs are product source identifiers
w
Goals of TM law:
n
Reduce
consumer search costs
n
Protect
producers’ investment in goodwill
w
Infringement standard: “likelihood of consumer
confusion” about product source
n
Usually
determined by a multi-factor test
n
But
when consumers aren’t confused at purchase, courts may evaluate goodwill
misappropriation
Defining Misappropriation
w
My Goal: Determine when junior users have
appropriated too much benefit in situations where consumers aren’t confused at
purchase
w
This requires us to separate “association” from
“misappropriation”
n
Association
= calling attention to content using a keyword/TM
n
Misappropriation
= transference to the junior user of good feelings about TM owner
w
TM doctrines like Initial Interest Confusion and
Sponsorship Confusion conflate the two
What About Relevancy?
w
When association = misappropriation, relevant
content can infringe
n
Non-TM
uses
n
Comparative
information
n
Commentary/criticism/parody
n
After-market
providers
w
This may increase net social search costs
n
TM
owner can veto socially beneficial content
n
Some
searches must use alternative search terms
Misappropriation from Search Diversion
w
Searchers dynamically assess the cost/benefit of
incremental search steps
n
A
searcher who has been diverted decides whether to switch or continue
w
In diversion cases, TM misappropriation should
occur only when a junior user distorts decision-making because users’ switching
costs exceed expected benefits from switch
n
Analogous
to bait ‘n’ switch
n
Adjusts
with strength of goodwill
n
Creates
space for relevant alternative content
Interesting Attributes of Internet Searches
w
Internet searches can lower search costs
n
Availability
of filtering content
n
Low
extrication costs
n
Comprehensive
searches
w
We cannot infer search objectives merely based
on a keyword
n
Searches
often lack surrounding context
n
Searchers
have heterogeneous search objectives
n
Searchers
often choose keywords poorly
Preserving Relevancy
w
Eliminate pre-sale goodwill misappropriation
except for switching cost arbitrage
w
Use false advertising when appropriate
w
Expect search providers to optimize relevancy
n
Marketer
abuses will be curbed by technology and evolved searcher expectations/practices
n
Search
providers need a legal safe harbor for advanced relevancy techniques