Deregulating Relevancy in Internet Trademark Law

This Article examines the complex world of Internet search. The Article seeks to ensure that trademark law does not interfere with the free flow of Internet content that consumers find relevant. The Article starts with three complementary looks at Internet search from the perspectives of searchers, publishers and search providers. From the searcher's perspective, the Article explains how searchers select keywords poorly and decontextualized keywords provide inadequate insight into the searcher's true objectives. From the publisher's perspective, the Article discusses how publishers try to anticipate search keywords and provide responsive content. From the search provider's perspective, the Article shows that search providers are not passive intermediaries manipulated by deceptive publishers. Instead, search providers actively mediate the relationship between searchers and publishers, often modifying searcher keywords and publisher content to facilitate a match. The Article also explains that all search providers use keywords to make those matches, and the emergence of keyword-driven searches has eliminated any meaningful distinctions between domain names, metatags and keyword-triggered ads. Based on this factual foundation, the Article looks at Internet trademark law. The Article particularly scrutinizes the initial interest confusion doctrine, showing its doctrinal deficiencies. The Article concludes with several proposals: 1) Trademark infringement analysis should be moved to later stages of a searcher's search process because harms at earlier stages are too speculative. 2) The traditional likelihood of consumer confusion test should be updated to include a factor that considers the relevancy of content presented to searchers. 3) Search providers should be given a safe harbor from liability to encourage them to do the best job possible at delivering relevant content to searchers