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Resource Author Francisco R. Higueras
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Courts throughout the United States have been at odds regarding the issue of whether or not a party's purchasing of a trademarked keyword to trigger sponsored links constitutes a trademark use within the meaning of the Lanham Act. In particular, the 2nd Circuit had consistently held that the purchase of a competitor's trademark to trigger Internet advertising did not constitute a use for the purposes of the Lanham Act.

One example of the above is the 1998 case which saw two recording artists battling in the courtroom over the use of a certain, distinctive logo – the letter "G". Rap artist Warren G attempted to sue country rock singer Garth Brooks over the latter's use of the letter G in his merchandise, claiming that he had already trademarked the letter. The case ended in mutual acceptance that both could use the letter, but led to much amusement over the respective claims to ownership of a letter that forms one twenty-sixth of the Roman alphabet.

Another lawsuit considered to be frivolous occurred in 2003 when the TV news station Fox News attempted to sue Al Franken in a case prompted by his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Franken's book, a satirical parody of what he and others viewed to be the excesses of the right-wing media outlets of the United States, reserved particular ire for Fox News – a station which uses the term "fair and balanced" as a network slogan.

Having trademarked the phrase in 1998, Fox felt that they had a case to sue Franken for unauthorized use of their trademark. They attempted to do so, citing as further evidence the fact that Fox News anchor Bill O'Reilly was depicted on the book's front cover.

Having satisfied this threshold issue, the issue will now become whether a likelihood of confusion, the test to be applied under a trademark infringement analysis, is satisfied. Practically speaking, a motion to dismiss for failure to state a claim will likely fail and timely and costly litigation in order to address all facts pertinent to the likelihood of confusion analysis will be necessary.

Judge Chin pointed out in his dismissal of Fox's case that the phrase "Fair and Balanced" could not realistically be trademarked because the words are so commonly used in everyday society. It is therefore instructive to take from this case that if one wishes to trademark a word or a phrase, they would be unwise to do so without very good reason.

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