Buying a Competitor's Name: Keyword Advertising and the Death of Initial Interest Confusion
By Casey Scott McKay ·
Buying a competitor's trademark as a search keyword is lawful in most of the United States, and this article traces the two questions every keyword case turns on: whether purchasing or selling a mark as a keyword is a "use in commerce" under 15 USC 1127, settled by the Second Circuit in Rescuecom, and whether the resulting ad is likely to confuse anyone. It follows initial interest confusion from Brookfield Communications and its billboard metaphor through Network Automation, which recentered the analysis on ad labeling and consumer sophistication, to Multi Time Machine, where clear labeling defeated a claim as a matter of law. It maps the circuit-by-circuit variation, including the Eighth Circuit's continued recognition of presale confusion, and explains why the fight has migrated from keyword purchases to ad copy, landing pages, dynamic keyword insertion, and affiliate conduct. It covers the Second Circuit's 1-800 Contacts decision and the antitrust limits on settlement clauses that restrict competitive bidding. Written for brand owners deciding whether to complain and for advertisers deciding how far they can go, it explains why platform advertising policies, not the Lanham Act, are the rules that actually govern most disputes.
IP and Technology > Internet | Article | Published 17 September 2024 - Updated 13 November 2025 | Casey Scott McKay - marksy.us
Summary. Buying a competitor's trademark as a search keyword is lawful in most of the United States, and the story of how that came to be is the story of a doctrine that rose and collapsed within a single generation. This article follows the two questions every keyword case turns on — whether selling or buying a mark as a keyword is a "use in commerce," settled by Rescuecom Corp. v. Google Inc., and whether the resulting advertisement is likely to confuse anyone. It traces initial interest confusion from Brookfield Communications and its billboard metaphor, through Network Automation, which recentered everything on ad labeling and consumer sophistication, to Multi Time Machine v. Amazon, where clear labeling defeated a claim as a matter of law. It maps the circuit variation, explains why the fight has migrated to ad copy, landing pages, dynamic keyword insertion, and affiliates, covers the antitrust limits that 1-800 Contacts, Inc. v. FTC placed on settlement clauses restricting bidding, and explains why platform ad policies — not the Lanham Act — decide most disputes.
Keywords: keyword advertising · initial interest confusion · google ads · adwords · trademark use in commerce · rescuecom · brookfield communications · network automation · multi time machine · sponsored links · negative keywords · dynamic keyword insertion · nominative fair use · comparative advertising · paid search · contributory trademark infringement · likelihood of confusion · trademark settlement antitrust · search engine marketing
This is premium Marksy content — the full document is available to subscribers.