Google Calls New Utah Law Unconstitutional

New Trademark Protection Act in Utah Bans Keyword-Triggered Ads

Lawyers around the nation will likely Google "Utah SB236" and "Trademark Protection Act" in anticipation of legal challenges that may end up in the U.S. Supreme Court. Utah's Trademark Protection Act is designed to protect companies from trademark infringement by banning the use of keyword-triggered advertising generated by Internet search engines and pop-up advertisers. Prior to the law being passed, lawyers for the Utah legislature warned lawmakers that the law will likely be challenged and had a "high probability of being found unconstitutional." In a report by The Salt Lake Tribune, a Google spokesperson said the law hurts consumers and violates free speech, adding that this law is not consistent with U.S. trademark law and our capitalist system. Consumers benefit from competition which generally helps lower prices, and the U.S. federal courts have consistently upheld the right to use trademarked terms in comparative advertising.

The new law generated the electronic registration mark. An annual fee of no more than $250 would be charged for each registered electronic mark under the law. Search engine companies and Internet advertisers will have to check every ad request to see if a user in Utah is making the request, then check the search terms against the database of electronic registration marks for possible trademark issues. Legal experts point out that this new law undermines comparative trademark use which is protected under federal trademark law. We have seen legal use of comparative advertising before from companies like Pepsi and Coca-Cola, or Microsoft and Apple.