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Abstract

Google is the world's most preferred search engine, with an audience share of eighty percent of Internet users worldwide. With so many people browsing its search results, Google is a natural advertising vehicle, and it has exploited this quality to become one of the most profitable Internet companies in U.S. history. However, success has not come without controversy, and one of the most significant concerns Google AdWords, which displays keyword-triggered ads and sponsored links alongside non-sponsored search results. AdWords has come under attack in the United States and in the European Union ("EU") for its role in trademark infringement on the Internet, forcing courts to confront the clash of pre-Internet trademark infringement doctrines with new technology. Courts wish to be sensitive to the claims of trademark holders, but are reluctant to harm the essential functions of Google, which has become integral to Internet structure and capability. In addition, they have struggled with trademark protection's traditional foundation in a world of physical boundaries when the Internet has rendered such barriers largely meaningless.[...] Part I of this Note outlines how Google AdWords uses keywords to generate online advertisements, explains where trademarked terms can enter this process, and how Google's legal policy approaches the use of such terms. Part II summarizes the current state of U.S. trademark law and policy with respect to keyword-triggered online ad programs, and Part III summarizes the same with respect to the EU. Part IV argues that the United States and the EU should coordinate international efforts to legitimize through legislation certain uses of trademarked terms by search engines in order to avoid inefficient balkanization of the Internet, and to protect a search engine's capability to encourage trade liberalization.

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