I. Introduction
On April 3, 2009, the Second Circuit Court of Appeals ruled
against Google in a much-anticipated keyword case, Rescuecom v.
Google.1 The result of the ruling, is that most
keyword-based trademark infringement cases will no longer be able
to be dismissed at the motion to dismiss stage in the Second
Circuit. Courts in the rest of the country that had ruled on this
issue previously had come to the same conclusion — that
alleging that keyword advertising was purchased or sold based on
third party trademarks is enough to state a claim against a search
engine or a competitor. Despite receiving this adverse ruling in
April, in May, Google announced that it would significantly expand
its keyword program in two ways. First, it would begin to allow
third party trademarks to be used in the ad text of sponsored ads
in the U.S. Second, it would expand the number of countries in
which it allows the purchase of third party trademarks as keywords
from four to 190
