Paid Search, Trademark Legalities and Liability — Oh My!

On Monday, still bleary eyed from my extended stay (thanks to the tornadoes in Dallas at the time my flight was supposed to leave New York) — I was lucky to attend the meeting of the Dallas/Fort Worth Search Engine Marketing Association (DFWSEM). The speaker was attorney Robert J. Scott of Scott & Scottin Dallas. Scott & Scott specialize in “helping senior executives assess and reduce the legal, financial, and regulatory risks associated with IT compliance management.”

Let me be the first to say that I don’t always get along with lawyers. My brother is an aspiring attorney, and while I love him, we definitely don’t see eye to eye on everything. In fact, by last count, there are seven lawyers in the family that I see regularly at Christmas and Thanksgiving – oh, and of course there are also five search engine marketers in the family. You can just imagine what our Christmas dinner is like.

Even so, in light of my recent client situation, I found this to be one of the best presentations I have heard in awhile. Scott’s presentation, entitled “Internet Marketing and the Law” brought forth some very valid points that every search engine marketer needs to realize when they run their campaigns.

For instance, did you know that if a search marketing agency acting on behalf of a client violates someone’s trademark or, as the lawyer speak says “create a likelihood of confusion” that you can be sued and be held liable for infraction. Yep, it’s not just that client that would get in trouble – the agency would be liable as well. Something to think about the next time your client asks you to push the envelope in bidding on competitors’ trademark names (another topic for a future column).

What impressed me most about Mr. Scott was that he not only understood the law, but he understood search. I’ve worked with many lawyers in the past who have trouble chewing gum and using a mouse at the same time. I have also served as an expert witness for several lawyers, who, if left to their own devices — would probably end up painting SEO and PPC tactics as geek voodoo that is only practiced by pocket-protector wearing savages. So speaking with Mr. Scott was a true breath of fresh air.

Much of Scott’s presentation focused on reputation management as it has to do with search. What do you do, if like in the case I discussed last week, someone is damaging your reputation with their PPC campaign? Scott discussed several legal theories that are commonly used to combat these situations.

The most common legal theories used in PPC cases are trademark infringement and typosquatting. Basically, what needs to be proven from a legal perspective, is that a trademark’s value has been diluted by a PPC ad. There are obviously free speech concerns that come into play, but according to Scott, in commercial speech, the free speech arguments aren’t as prevalent. However, if someone is upset at your company for starving Malaysian children and making them assemble shoes while dodging poisonous snakes, free speech will definitely be an issue in a court of law.

Of course, Mr. Scott’s point was that PPC campaigns should be looked over by a competent legal team. This was where I disagreed with Scott slightly. While I agree that having a legal team look at any ads that might be questionable, it is unreasonable (and unnecessarily costly) to expect all PPC ad campaigns to be reviewed by a legal team. Working with a legal team to create guidelines, however, could be an essential tool for every agency and in-house PPC team. Well thought out guidelines can prevent significant heartache and heartburn in the future.

Even though Mr. Scott had great insight, I still feel that using legal channels to resolve PPC disputes like the one I discussed last week, should be a last resort. Of course, it’s always a good idea to run things by your counsel, but don’t let a lawyer push you to immediately send out a cease and desist letter to a disgruntled customer.

In this age of social media, there is a good chance the cease and desist letter will end up on a blog, and could do more damage to your company reputation than the offending ad did in the first place. Before you send in the dogs, try to resolve the situation in an amicable way. That way, everyone involved may be satisified with the result, and your reputation could possibly come out even better than it was before.

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