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91 Tul. L. Rev. 629 (2016-2017)

handle is hein.journals/tulr91 and id is 685 raw text is: TULANE LAW REVIEW VOL. 91 APRIL 2017 No. 4 Rigged Results? Antitrust Lessons from Keyword Auctions Samuel N. Weinstein* Bid iggig is quintessential cimnal antitaut conduct Yet search engine optimization expertspublicly advise fims to agree with competitors not to bid on each others trademarks M search engine keyword auctions, and evidence hidicates that companies enter such bid- suppression agreements. his Article examines the paameters of keyword auction bid suppression and why it persiss despite the antitrust nsks. Auction participants may assume that bid suppression (or other anticompetitive conduct) is lawful if it involves a putative mtellectual property nght; in this case a trademark or brand-related term. Fims and their advisers night even believe that such agreements arc procompetitive because they conserve party and judicial resources and potentially diminish consumer confusion. This reasoning assumes that pubasing a competitork trademark for use as a keyword constitutes infringement Howeve, it appears that no court has found trademark liability solely based on auctioning, bidding on, or purchasing a trademarked keyword Parties have litigated this issue and the law is in flux. This legal uncertainty puts firms contemplating such bid-suppression agreements and courts evaluating them in a dificult position, one that requires navigating the borders between antitrust law and LP nghts. Indeed these agreements raise the broader question of how to analyze potentially unkawful P settlements when it is unclear if the ights involved are valid and infringed This Article proposes a framework for analyzing search * 0 2017 Samuel N. Weinstein. Academic Fellow, U.C. Berkeley School of Law, Berkeley Center for Law, Business & the Economy. J.D., U.C. Berkeley; Ph.D. (history), U.C. Berkeley. The author was formerly Counsel to the Assistant Attorney General of the U.S. Department of Justice's Antitrust Division. The views expressed in the Article are those of the author alone and are not purported to reflect those of the U.S. Department of Justice. The author would like to thank Kenneth Ayotte, Jordan Barry, Robert P. Bartlett, In, Aaron Edlin, Victor Fleischer, Jill Fisch, Eric Goldman, Cathy Hwang, Robert J. Jackson, Prasad Krishnamurthy, Patrick Kuhlmann, Colleen Honigsberg, Mark Lemley, Orly Lobel, Frank Partnoy, Daniel Rubinfeld, Carl Shapiro, Howard Shelanski, Steven Davidoff Solomon, and the faculty and staff of the Berkeley Center for Law, Business & the Economy for helpful comments and suggestions. 629

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