Keyword advertising involves the sale of keywords, sometimes comprising the trade marks of others, by search engine providers so that the keyword purchasers' advertisements are triggered as sponsored results whenever Internet users type in any of the keywords as search terms. This method of online advertising is new and novel and has been embraced widely by many businesses. However, its legality, particularly in the sale of keywords comprising the trade marks of others, has been challenged in a number of major jurisdictions. This article examines the approach of the courts in the U.S. and the UK with regard to the practice of keyword advertising with particular emphasis on the concept of “trade mark use.” With these foreign decisions serving as a useful guide, this article analyses and evaluates whether the practice of keyword advertising is legal under Malaysian trade mark law as embodied in the Trade Marks Act 1976.
