Sales of keyword-based advertisements by Internet search services raise important trademark issues. Proper resolution of these issues requires empirical evidence and clear understandings of how Internet search services work, and how Internet users understand the advertisements (sometimes called “sponsored links”) that are keyed to keyword use.

This article provides background information relating to search services and keyword advertising, to assist trademark owners and users, lawyers, and courts in understanding and accessing Internet search service practices. It reviews technical and legal developments with respect to keyword-based advertising. It describes key judicial decisions on this issue, including the split between decisions that find no trademark use in commerce, as well as those that find triable issues as to likelihood of confusion.

Any case that presents a triable issue as to whether consumers are confused by keyword-based advertisements needs empirical evidence on the confusion issue. This article describes in detail a consumer understanding study that was prepared for use in GEICO v. Google, a leading keyword-based advertising case. This section of the article describes the survey’s structure and techniques, including the test and control stimuli selected, designed to fulfill the objective of accurately accessing how ordinary Internet users understood the keyword-based advertisements at issue in that case.

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