Keywords, Trademarks, and the Gray Market: Why the Use is Not Fair

This Comment analyzes the escalating effects of Internet banner ads and gray marketers on trademark owners\u27 ability to control the use and sale of their marks as keywords and metatags. To unify these concepts, Ms. Nester utilizes the facts behind a suit filed by Estee Lauder, Inc. against an Internet fragrance retailer and an Internet search engine. The suit alleged trademark infringement and unfair competition, among other things, for the Internet entities\u27 unauthorized uses of Estee Lauder\u27s registered trademarks in fragrances. The author explores the facilitating and enabling effect of the Internet on gray market, or parallel importation, activity, such as the Internet retailer\u27s avoidance of substantial costs of operation and advertisement. In sum, Nester argues that the use and sale of keywords that trigger banner ads on the Internet enable gray marketers to unfairly profit off the good will of trademark owners and that such acts should be exempt from fair use and constitute trademark infringement. Moreover, these unauthorized activities are likely to cause consumer confusion, which in turn could lead to damage of marks\u27 good will