Judge Roopali Desai is calling for her colleagues to rethink the precedent that keyword advertising constitutes 'use in commerce'. This aspect is crucial as trademark law primarily protects parties against infringing uses of their marks. The landscape of advertising has evolved tremendously since Google's inception, suggesting that consumers have become adept at discerning ad placements from organic results, which could reinforce the argument that purchasing keywords might not infringe on trademark rights.
The recent rulings from US Courts of Appeals reflect a significant shift in trademark law, emphasizing the concept of 'trademark use' in relation to keyword search purchases. Judge Desai's viewpoint aligns with criticisms voiced by scholars about existing legal precedents. She argues that with the evolution of digital search dynamics, there is room for redefining what constitutes a 'use' under trademark laws, especially in light of recent Supreme Court decisions that seem to modify the criteria for infringement assessments.
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