District Court Within Eighth Circuit Finds That Sponsored Link Advertising is Use in Commerce
The District Court of Minnesota has determined that keyword advertising is "use in commerce" for purposes of trademark infringement. Hysitron Inc. v. MTS Systems Corp., 2008 WL 3161969 (D. Minn. 8/1/08).
MTS purchased the term "hysitron" to generate a sponsored link through Google, and Hysitron filed suit. The Eighth Circuit has not determined if sponsored link advertising constitutes "use in commerce." The court sided with the majority of courts and found that sponsored link advertising is "use in commerce."
Of course, the use in commerce issue is pedagogical unless the plaintiff can show likelihood of confusion. Here, the court agreed with Hysitron that additional discovery is needed to determine likelihood of confusion.
