Businesses have long understood that an advertisement can serve as an opening to connect the viewer to information and materials not included in the advertisement. Simple, traditional means of making this connection or link include: references to 800 numbers, tear-out sheets and postcards, and invitations to visit showrooms or to order printed materials or samples.
One of the unique characteristics and an essential, defining function of the Internet is the easy, instant, free connection afforded by HTML (the hypertext markup language that defines the world wide web).By entering or loading HTTP (the hypertext transfer protocol), you avail yourself of the world wide web (www) and acquire the electronic capability required to access websites and documents on the web. The power of the Internet is largely this easy ability to link to any document or site regardless of its authorship or physical location.
This easy linking is most often accomplished by clicking on a URL, highlighted text or an icon1, any one of which may be someone else’s trademark. Is this a permitted or fair use? Web advertisers and vendors have also learned to manipulate the HTML features of others’ websites and search engines to attract (and distract) viewers. When is permission required?
The implied right or license discussed below may support the unauthorized use of URLs, home page linking and, to some extent, deep linking, but that support may be compromised or the implied right may be exceeded by other attributes of the link, the search engine, or the linked sites. This article considers implied rights and fair use, posted linking policies, linking agreements, and keyword purchases in connection with use of third-party trademarks and the linking features of the Internet.