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Seo & Trademark Infringement


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17 replies to this topic

#1 Haystack

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Posted 28 July 2003 - 10:47 AM

Has anyone had to deal with competitors using your company's trademarks to boost their search engine rankings? If so, how did you deal with this? Cease & desist letters? Did you get a lawyer involved? Horror stories? Any advice would be appreciated.

#2 Matt B

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Posted 28 July 2003 - 11:22 AM

Wow Ed, touchy subject, there.

They had a session about that at the Boston SES, and it was one of the best sessions, IMO.

The main thoughts about trademark infringement was that the difficulty to moderate from a legal standpoint because there have been very few cases to establish a precedent. When used in the context of "comparison," competitors have much more leeway.

As Danny pointed out, the difficulty arises when trying to determine the motive of a query. Is the searcher looking for company info, comparisons, or customer opinions? Motivation of the user is critical as it becomes difficult to establish trademark on a query, rather than a name.

Edited by SEO Guy, 28 July 2003 - 11:23 AM.


#3 Alan Perkins

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Posted 28 July 2003 - 11:29 AM

My advice, if you're serious enough to be thinking about legal action, would be

1) Get a lawyer involved
2) Follow the lawyer's advice :aloha:

There is precedent on simply using a trademarked term in meta tags.

There are some, IMO, fair uses of trademarked terms that have not yet been tested in court. Comparative advertising, for example.

Edited by Alan Perkins, 28 July 2003 - 11:30 AM.


#4 Matt B

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Posted 28 July 2003 - 11:36 AM

There is precedent on simply using a trademarked term in meta tags.

There are some, IMO, fair uses of trademarked terms that have not yet been tested in court.  Comparative advertising, for example.

Exactly right, Alan.

Until the Marks Nutritionals v. Overture (and a few others) case is resolved, there isn't a clear-cut direction that we can use as an indicator.

Of course - this is based on both PPC and natural listings affecting the visibility of a company. Competitors were bidding on the trademarked name and the actual site was buried in the SERP's. So, even with an outcome, it still may not provide any insightful direction.

Edited by SEO Guy, 28 July 2003 - 11:36 AM.


#5 Haystack

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Posted 28 July 2003 - 12:06 PM

Thanks guys. In this particular case, a client's lawyer asked me to help them figure out who was violating their trademarks and they're going to figure out how to address the issue. Their trademark is their two-word company name used in conjunction with the industries they're in, so I basically created a set of queries for them to pull the potentially offending results (and many of them were clearly offending).

I'm assuming they'll send cease & desist letters to the offending sites. Trademark holders are supposed to rigorously defend their trademarks and that's what the client's lawyer plans on doing.

Alan, I agree that there are fair use situations for use of other company's trademarks like comparative advantage. Otherwise it would be pretty tough to say your product is better than X.

#6 Alan Perkins

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Posted 28 July 2003 - 12:19 PM

Ah, I see it is serious then. :aloha:

These are good starting points from SearchEngineWatch:

Search Engines and Legal Issues
Meta Tag Lawsuits

#7 Haystack

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Posted 28 July 2003 - 12:24 PM

Great resources, Alan. Thanks for digging those up.

#8 HorseCove

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Posted 28 July 2003 - 01:12 PM

In the few times where I've had to deal with trademark violations we were able to resolve the problem by having our lawyer write a cease and desist letter to the offending web site.

Most of the time it's an over zealous webmaster or marketer who just didn't stop to think. If the letter comes from a lawyer, they know you are serious and the majority of the time they fix the problem.

If you encounter a violator that is more stubborn, that's when your lawyer needs to escalate the pressure.

#9 HorseCove

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Posted 28 July 2003 - 01:27 PM

Trademark violations also go on in the PPC world too. I ran into this on Google once when a competitor was purchasing my client's name as a keyword buy.

Here's what Google told me:

To prevent fraudulent requests and to help expedite the process, we ask
that the trademark owner provide the following information in a signed
letter on company stationary:


1. Name of Company
2. Contact information (including email address)
3. List of trademark(s) at issue and the country in which it exists
4. The identity of the advertisement(s) at issue (via the URL stated on
the bottom line of the ad)
5. Are you concerned with advertisement's content or the keywords that
trigger it?
6. Include the following statement:
'I have a good faith belief that use of the trademarks described above
with the advertisements described above is not authorized by the trademark
owner or its agent, nor is such use otherwise permissible under law.'
7. Include the following statement:
'I swear, under penalty of perjury, that the information in this
notification is accurate and that I am authorized to act on behalf of the
trademark owner.'
8.Your signature.


We ask that this written communication with the above information be sent
to the following address:


Google, Inc.
Attn: Google AdWords, Trademark Complaints
2400 Bayshore Parkway
Mountain View, CA 94043


Overture's directions on handling trademark violations are similar and can be found at http://www.content.o...emarkinfo.jhtml.

#10 Haystack

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Posted 28 July 2003 - 02:01 PM

In the few times where I've seen trademark violations we were able to resolve the problem by having our lawyer write a cease and desist letter to the offending web site.

I'm assuming that will be the case here.

The use of trademarks on PPC search engines is an interesting issue. Should the PPC sites be responsible for policing that? If they're profiting from the clicks I could see where they might be held responsible. Personally, I think the advertiser would be more liable since they researched and loaded the terms to advertise their business.

#11 HorseCove

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Posted 28 July 2003 - 02:28 PM

I talked with reps from both Google and Overture about trademark violations in the past. They both assured me they would definitely support the holder of the trademark if they were notified via their outlined steps.

Google and Overture both discourage trademark abuse on their site and agree to remove the violator's ads, but they aren't going to go looking for violations.

So, the burden of identifying trademark violators is on the holder of the trademark (at least for now).

#12 Bill Slawski

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Posted 29 July 2003 - 12:31 AM

The burden of policing for trademark is probably more than Google could handle. The burden should be upon the trademark holders.

A trademark doesn't have to be registered to be a valid trademark. While you can register with the federal government in the US, you can also register with state governments. But even first use in commerce is enough for a common law trademark. Recoverable damages could be greater if you have a federal registration, and are permitted to pursue federal statutory penalties.

There are also international trademarks to be concerned about.

It can be difficult for a court to determine if there is a trademark infringement. A search engine might have even more difficulty.


Trademark violations also go on in the PPC world too. I ran into this on Google once when a competitor was purchasing my client's name as a keyword buy.


We ran into a similar situation. Companies were purchasing adwords for two of the three words in a competitor's name. Performing a search for that company resulted in a number of those competitor's ads showing first, and along the side of the results. As their competitor, we weren't happy.

A handful of cease and desist letters, and followup reminders of the use of negative keywords resolved the problem.

Google, Inc., seemed much less than enthusiastic about getting involved. Fortunately, the other parties involved were very responsive, and Google wasn't forced to show their support for a trademark holder.


Added: This is a helpful site about trademark infringement if you want to learn more about the subject:

http://www.chillinge...ademark/faq.cgi

Edited by bragadocchio, 29 July 2003 - 01:08 AM.


#13 Alan Perkins

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Posted 29 July 2003 - 09:00 AM

We ran into a similar situation.  Companies were purchasing adwords for two of the three words in a competitor's name.  Performing a search for that company resulted in a number of those competitor's ads showing first, and along the side of the results.  As their competitor, we weren't happy.

A client of ours had a similar issue and response. However in their case it was a single, virtually unique trademark - their name, which they invented - that had been bought by their nearest competitor, somebody who used to work for them but left to set up for themselves.

The response was as you described, for the reasons you described. This is in the UK.

I'm interested by the response posted by HorseCove, which doesn't match our client's experience. I wonder if it was more recent. I would guess that if both parties are prepared to "swear under penalty of perjury" then the engine will let the parties thrash it out between themselves. Otherwise, the party that is prepared to swear will get the benefit of the doubt. :thumbup:

In our case the issue quickly resolved itself because it seems the competitor failed to achieve the required CTR. :)

#14 LeftCoaster

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Posted 30 July 2003 - 08:57 PM

Thanks to HorseCove :D for sharing the steps to report trademark violations to Google. I copied and emailed it to the National Association of Realtors. I'm a real estate broker and a Realtor who gets fed up :stout: seeing violations of the Realtor trademark.

#15 Jill

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Posted 30 July 2003 - 11:43 PM

Welcome, LeftCoaster! :aloha:

Jill




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