Most people believe it is wrong to infringe someone's trademarks.  The theory behind trademark law is that the public comes to know the quality and desirability of goods and services that it receives under a given mark.  Thus, the trademark - the identifier of the source - is protected to keep the public from being confused.  Few people would argue that I should be able to hang a sign in front of a store that says WALMART - even if a customer would realize they are in KMART the moment they walk in the door.  

There is an analogous situation happening on the Internet, however.  Companies will pay GOOGLE and other search engines to use their competitor's trademarks in an effort to lure potential customers to their websites instead of the websites of the trademark owner.  In other words, I can buy WALMART as a keyword, so that when a person searches for WALMART, they may end up at my KMART website instead.

Most people would consider such actions to be unethical, if not dishonest.  Why should a person be able to lead clients looking for their competitor's product specifically (not just the general goods or services) to a location that does not sell that product? 

The courts, unfortunately, are divided on the issue.  Some have found such conduct to be unfair competition or a violation of trademark law on the theory of "initial interest confusion."  The basis of the theory is that you should not be able to confuse consumers into coming to your website when they think they are going to a website that sells the product they are looking for.  It is only after the person looks around the website that they realize they are not going to get what they are looking for.  Essentially, it is the same as the person walking into my fake WALMART and realizing that they've been mislead.

1-800 Contacts and some other Utah companies are concerned with others using their trademarks and have promoted laws that would make such marketing a violation of Utah law.   GOOGLE and many of the 'big boys" are opposed to the law, which would cut significantly into their profits.  A competitor helps run up the price on a keyword, adding to GOOGLE's bottom line.

I was surprised today when I received an email from the Utah Technology Council strongly encouraging me to contact my state senator to vote against the H.B. 450 - the latest version of the bill.   As I read through the talking points and the arguments in the email I felt that many were very slanted - if not simply inaccurate.  For a detailed analysis of why the UTC' email was off base see PrimaFacieNews.  As I read the email is sounded more like it had been written by GOOGLE's legal department than an organization that represents 5000 technology companies (many of whom are having their trademarks misused by competitors).

Ironically, I agree with the Utah Technology Council that Utah is not the place to decide the issue.  We need Congress to clarify the law so we can get consistent court decisions.  Unfortunately, GOOGLE and the like have plenty of cash to lobby Congress, as compared to most trademark owners who simply want people to stop trading off their goodwill.  Thus, do not expect Congress to do the right thing anytime soon.

I am very disappointed, however, by the arguments UTC made.  (My firm is a member and I am totally on board with most of what UTC does).   Companies should not be able to lure the public away from a website by purchasing the paid links.  If I am trying to find someone who sells Toshiba brand computers, why should Dell, HP or Sony be able to misdirect me to their website?  How is creating initial interest confusion over the internet any better than putting up a WALMART sign, only to have it clear once inside that I am really KMART?

Rather than writing your Senators to reject the pending legislation, I would recommend you write to UTC and encourage a more principled approach that respects the trademarks of its members.