Question: When it comes to trademark law and search marketing, what does a company need to be aware of and what can it do to protect valuable intellectual property assets?
Answer: There is no doubt that in today’s red-hot search marketing climate, some companies have resorted to questionable business practices in an effort to boost search engine rankings—for example, using competitors’ trademarks to elevate their own results. Companies must be aware of what their competitors may be doing—or even, what their own overzealous search marketing employees and consultants might be cooking up—with regard to trademark infringement and its legal ramifications.
You might think the search engines themselves could avoid confusion by refusing to let companies bid on trademarks they themselves do not own. Sure they could—if they were content to give up the revenue they make on these keywords, which are often hotly contested and thus commensurately high priced. And cracking down on pay-per-click keywords—if the search engines were inclined to do so—would still leave open the question of using competitors’ trademarks to influence natural [organic] search results.
This issue—the responsibility of the search engines themselves—may soon be resolved in the courts, as a retailer recently filed a trademark infringement lawsuit not against its competitor but against Google, for facilitating the practice. While you might think a lawsuit would result in Google’s becoming more conservative in this area, in fact the opposite has occurred: Google recently announced it was allowing anyone to bid on trademarked words, with no restrictions. Its legal strategy is to wash its hands of any responsibility for policing trademarks (much as community forum sponsors, for example, take no responsibility for reviewing or editing user postings, thus relieving themselves of liability for libelous or slanderous language).
There are concrete steps any organization must take in order to proactively defend its trademarks.
Implement a complete organic SEO campaign on your site to protect the free organic space and compete with the costly paid listings.
Create a cease and desist policy to enforce your rights when a violation of your trademark occurs.
Put a strong statement of your trademark protection policy on your Web site and provide a place for people that have been led astray by a violator to report the violation.
When creating an affiliate agreement, include a keyword "do not purchase" list covering trademarks.
As the world of search develops with new products such as local search, it becomes increasingly important to make sure trademark policies are firmly in place. The issues discussed here can be dealt with through proper upfront planning and a clear definition of how to best protect individual trademark rights.
Matt Naeger is VP-operations at search engine marketing company IMPAQT. http://www.impaqt.com