Traverse Internet Law deals with the issue of using a business using a trademark of another to generate traffic. Basically the process goes like this.
When someone is searching for a competitor, it would be great for a business to be able to pick off that prospective customer. So an unscrupulous business might add the competitor's name to its meta tags. It might add the name to its html in a number of not so obvious ways that do not show up in the words on the page. It could use "hidden text", which means it could present the competitor's name in text that is the same color as the background so that it can not be seen. It could "keyword stuff" its site with the name like one might do if you are optimizing your own website to be returned by the search engines when you are searched.
Many of the free speech expansionist groups are trying to justify this practice by arguing that an exception applies. They use the first sale doctrine, criticism, and comparative advertising, as well as a general technical argument that doing this is not a "use in commerce" required for there to be trademark infringement. And thus are the battle lines drawn in the ability to make money off of a competitor's name.
But the Courts are closing in using the doctrine, among others, of "initial interest confusion". Aside from all of the legal nuances, the bigger picture is that as these groups continue to justify trademark infringement by wrapping themselves in free speech, they are actually abusing our First Amendment rights. Because they are taking the sanctity of free speech and dragging it through the mud. These groups, including the ACLU, Electronic Frontier Foundation, Public Citizen, and a host of left wing interests continue to argue gross misconduct is permitted by our Constitution.
But the Courts, now becoming more and more sophisticated and knowledgeable, are not buying their arguments more and more often. The latest setback comes in a Google case in which many of these free speech expansionists filed briefs arguing that keying commercial advertising (AdWords) off the trademark of a competitor is not trademark infringement. The Second Circuit found that it could be infringement.
At Traverse Internet Law we often wonder how the misuse of these honest and fair and reasonable exceptions (criticism, comparison advertising, resale doctrine) to trademark infringement will hurt those very rights in the long run. Courts will continue to chip away at the doctrines because, well, they are all being grossly misused as a justification to break the law.