Has Your Trademark Been Poached?

I’m not a lawyer, and I certainly don’t play one on TV (or anywhere else). To me, the role of lawyers in business is sort of like the role civet cats and their secretions play in certain perfumes: I’m sure they’re vital to the outcome, but I don’t want to be anywhere around them when they’re doing their business.

Unfortunately, though, there’s no way to avoid lawyers, especially when it comes to the Web. With the simultaneous explosions of content and worldwide access, lawyers are more important than ever when it comes to protecting that which many of us consider our most valuable assets: our intellectual property.

Think about it. The Web is, at heart, nothing but information. Whether brand identities, content, or code, what we put online has no tangible form. It’s ephemeral stuff, accessible to anybody with a modem and computer anywhere in the world. Because it’s digital, it’s easily copied, transmitted, and modified without our knowledge. Also, because what we’re really dealing with here is words and symbols, protecting these symbolic forms of expression can be difficult in that protection often involves much interpretation, and interpret is just what lawyers and courts love to do.

For a long time, search engines have been a vital part of how people navigate the Web, and today, with literally billions of Web pages available, search engines have become the gateways to Web content. Sites not “visible” in search engines may as well not exist for most people.

As a result, getting sites listed in search engines has become a rapidly growing business. Though many of the “rules” of search engine optimization have been mandated by the search engines themselves, disagreements over how those rules are used or interpreted have begun to cause a few collisions between intellectual property law and those using the Web. That’s why any marketer who wants to get the most out of search engines better understand how the laws are being applied and created.

Although “pure” search engine optimization is a fairly arcane task involving specific page-design guidelines, meta tags, page submissions, and various insider “tricks,” many companies have increased their visibility on search engines by purchasing keywords. Purchasing a keyword only gets your listing into the “sponsored links” category on most search engines, but it does increase its visibility to the first page of search engine results. In addition, because most search engines use a pay-for-performance model in which advertisers only pay for clicks, many clients have found keyword purchasing provides more bang for the buck than nearly any other online advertising vehicle.

The art of purchasing keywords is in choosing the right ones — knowing which words users may be typing in when looking for your site. Just like choosing the right site meta tags, knowing what keywords to purchase can make all the difference.

Because keywords serve as pointers to a site, some unscrupulous advertisers have tried in the past to use their competitor’s names or trademarks in their meta tags to hijack potential traffic. Known as “metajacking,” this practice has been discouraged by several high-profile court rulings (find some good links here) and has generally fallen out of practice. However, there may be a new problem: keyword poaching.

Although using other company’s trademarks in meta tags has been all but stamped out, the practice of purchasing another company’s name or trademarks as search engine keywords has just begun to surface as a problem. In this scenario, Company X, which sells widgets, may buy Company Y’s name and the word “widgets” on a search engine, effectively hijacking any search for Company Y on that search engine.

For the most part, search engines do not see themselves as “trademark police” and have often decided not to run trademark checks on purchased keywords. Google’s AdWords FAQ, for example, only says keywords should be “relevant” but does not specifically include any language about trademarks.

There have been reports of some well-known companies engaging in this practice, but there has yet to be a landmark case in the area. In fact, one of the few cases on keyword trademark infringement to go to trial actually yielded a surprising result: purchasing a keyword that is the same as someone else’s domain name doesn’t violate the trademark rights of the company holding the domain name. In one case Nissan won the right to purchase “Nissan.com” even though it didn’t own the domain.

Should you worry about keyword poaching? Definitely. Periodically checking search engines to verify that your trademarks haven’t been poached by another company is a pretty smart practice. Educating yourself about the issue is important, too. There’s a lot of confusion out there over the legalities of the situation; the best thing to do is to know what the issues are. The following links provide some good background for understanding keywords, trademarks, and the law:

• “Search Engine Optimization and the Law“
• “Search Engine Lawsuits O’Plenty“
• “Search Engines and the Legal Issues, Continued“
• Search engine keyword discussion on Webmaster World (free registration required)
• Keyword Density Analyzer (see how “popular” keywords are)
• “Playboy sues Search Engines over Trademark” (one of the landmark cases regarding meta tags)