This legislation allows the registration of an electronic mark that would prohibit the triggering of an advertisement for a competitor. The most prominent application for this type of mark is the use of user-entered search terms in an Internet search engine to trigger advertisements. These triggered advertisements are often advertisements for a competitor of an entity whose name is entered in the search engine by a potential customer. Because of the potential impact on interstate commerce from the state's regulation of electronic registration mark use on Internet search engines, this legislation has a high probability of being held to be unconstitutional.
The Commerce Clause to the United States Constitution provides that Congress has the power to regulate interstate commerce. (U.S. Const. art. I, sec. 8). This provision also has a "dormant" aspect that "prohibits state . . . regulation that discriminates against or unduly burdens interstate commerce." General Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (Citations omitted). Although the dormant aspect of the Commerce Clause is not implicated when Congress has delegated its power to regulate in an area to the states, that delegation "must be either 'expressly stated' or 'made unmistakably clear.'" New York State Dairy Foods, Inc. v. Northeast Dairy Compact Comm'n, 198 F.3d 1, 20 (citations omitted). Further, this delegation must be specific to that state action challenged. See Ind. Community Bankers Ass'n v. Bd. of Comm'rs of the Fed. Reserve Sys., 838 F.2d 969, 973-77 (8th Cir. 1988) (holding that although Congress authorized states to allow a bank's acquisition by out-of-state entity, Congress did not authorize restrictions on acquired banks).
