The Court of Appeals for the Ninth Circuit has overruled the district court which granted summary judgement to Netscape, which was accused of violating trademark law by selling keywords to advertisers in association with Netscape's search engine. The plaintiff is Playboy which has become to internet trademark law what Scientology is to copyright law.

The decision is an unfortunate extension of Brookfield's initial confusion doctrine beyond URLs and meta-tags to search engine keywords. However, this relatively limited decision merely gets Playboy over the hurdle of summary judgement and does not necessarily mean they will win the case. Read the decision: Playboy v. Netscape [PDF], 00-56648 (Jan 14 2004).

In particular, there is a very nice concurring opinion that attacks the foundations of Brookfield itself, and I highly recommend reading it.

Of course, the decision itself has some amusing lines. For example, in analyzing the eight Sleekcraft factors, the court determines that pornography is easily substitutable, particlarly graphic pornography:

We presume that the average searcher seeking adult-oriented materials on the Internet is easily diverted from a specific product he or she is seeking if other options, particularly graphic ones, appear more quickly. Thus, the adult-oriented and graphic nature of the materials weighs in PEI’s favor as well.

There is no citation for this admitted "assertion," so one wonders whether this assumption is based on the court's personal experiences. And what do they mean by "graphic" here? If one were searching for graphic pornography, one would be unlikely to be interested in Playboy.

via The Trademark Blog