The final in a series of special reports from the Search Engine Strategies 2001 Conference, August 16-17, San Francisco CA.
Legal questions come up frequently in search engine optimization discussions: Can I use competitors' words in meta tags? What do I do if I catch my competitor utilizing my trademark? Can I buy trademarked keywords on search engines?
At Search Engine Strategies in San Francisco last month, these issues were discussed in a well-attended panel called "Search Engines and Legal Issues".
There are very few laws that specifically address Internet law, but there have been a few significant precedent legal cases that have attempted to define acceptable use in the Internet space. Existing copyright and use laws can usually be applied to the Internet in the same way as traditional media. However, there still appear to be many gray areas.
"The law is inherently slow," said presenter Jeffrey Rohrs, a self-styled "recovering attorney" from FutureNext Consulting. "Recently, I've been seeing a growing number of red flags as SEO and Internet marketing innovations grow at a rate that outpaces our ability to make new laws. This is partly because of our legislative process, and partly our judicial process."
The bad news: the judicial process is even more compounded by the effect of state laws, which can vary greatly from state to state. By its nature, the Internet is global in reach, but the companies currently occupying the marketing space are subject to state and federal laws. The good news: recent legal cases have begun laying groundwork for future interpretations by arguing under existing laws.
Here's a quick overview of the primary issues under discussion that directly impact site owners and search engine strategists:
- Meta Tags. In Playboy v. Welles, Playboy bunny Terri Welles was sued by Playboy for utilizing the word "Playboy" within the meta keyword tags on her site. Although Welles eventually won her case, arguing that she had legally earned the title of Playboy Bunny and could therefore use the trademark, the case is under appeal.
Panelist Danny Sullivan, editor of SearchEngineWatch.com, was an expert witness in the trial. He told conference attendees that he didn't believe that the use of meta tags, specifically the meta keywords tag, was deceptive advertising in itself because it is not easily visible to a user and is not therefore a "sign" in the traditional sense. However, he cautioned attendees of the conference, the meta description field is very visible in search results, so deceptive use of words in that space should be considered risky at best.
He argued that there are occasionally legitimate reasons to use a trademarked or competitive keyword, such as in comparative advertising. "Look at the overall appropriateness of the usage," he said. "Why and how are the terms being used?"
Deborah Wilcox, an intellectual property attorney at Baker & Hostetler LLP, gave some advice to site owners in the audience. "Promote your own brand, and limit your use of others' trademarks to comparative and relevant activities," she said. "Conversely, limit your competitors to the same. But, pick your battles wisely."
- "Buying" Trademarked Keywords. This is a hot topic of discussion right now, with the advent of word-jacking technologies like eZula, QuickClick, Microsoft Smart Tags, and Gator. These technologies have the ability to superimpose links and advertising messages on other sites. See http://news.cnet.com/news/0-1005-200-6797640.html for more information.
Precedents were set several years ago when search engines were called on the carpet for selling search-associated keywords to serve up banner ads, but so far the score seems tied: Playboy sued Netscape and lost, while Estee Lauder sued iBeauty and won.
Selling keywords that are the trademarks of others does not fall under traditional theories of trademark infringement, dilution or unfair competition, at least where the keywords may have meanings other that as trademarks, said Rohrs.
In July of this year, Ralph Nader has filed a complaint with the FTC (http://www.commercialalert.org), arguing that search engines selling "top search results" to advertisers without clearly marking the links as advertisements are in violation of federal deceptive acts and practices law. The outcome remains to be seen, and may impact how search engines format their search results. Rohr projected that if the case does go to trial, it is reasonable to assume that pay-for-placement results may be treated as "paid advertisements" and thus are subject to any applicable regulations.
Should you try to buy your competitors' keywords? All three panelists urged caution in pursuing trademarked words without thought as to culpability. Wilcox said, "Anyone who participates is potentially liable, including the Web developer. Litigation can cost millions of dollars." (Developers take note: make sure to use best practices, but also have language in your contracts to limit your liability.)
- Page-jacking and Spamming. Page-jacking is taking someone else's content and using it (generally "cloaked" so as not to be visible to users) to bait search engines. The bait-and-switch technique has been used by many SEOs to achieve higher rankings, but combining this technique with the use of trademark or copyrighted content is most definitely illegal.
Search engine optimization firm Greenflash was called on the carpet in an FTC complaint last year (http://www.searchenginewatch.com/sereport/00/05-pagejacking.html) for allegedly stealing content from Disney, Discovery Channel and CNET. According to some SEOs I spoke with, this technique is still used by some companies despite the risk of getting caught and reported.
Trademark protection. "Protect your own valuable intellectual property through registration and proper use", said Wilcox, who is an intellectual property attorney.
Search the Web frequently using your trademark marks and keyword terms to check for unlicensed use. Check top resulting sites' meta information for any infringement. If you find a questionable or illegal use, contact the site owners immediately. Build a good case of actual evidence. If you have legal counsel, a standard cease-and-desist letter usually does the trick.
Also, notify the search engines when you see abuse happening. Most of the time, they are willing to help, and may just dump the links automatically rather than risk a lawsuit.
If you own a registered trademark, use words like "official" in page titles and descriptions to denote your ownership of the brand, as in "The Official Barbie(r) Site," suggested Sullivan.
When working with outside contractors, make sure your contract states that you own the copyright use of all materials, and that they will not knowingly infringe on any protected intellectual or other property.
More information on related legal issues can be found at http://law.about.com/cs/cyberspacelaw/index.htm
Dana Todd is a founding partner of SiteLab International Inc. <www.sitelab.com>. She obsesses on the flagrant misuse of the apostrophe because of her journalism and advertising background. She is a frequent speaker on Internet marketing topics, including search engine strategies and link-buying.
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