SEO and Trademark Infringement

In the early days of the World Wide Web, before the rise of Google, one tactic that people used to get traffic to their website was to insert a widely used search term (such as Playboy) in their webpages, usually in the meta tags or as hidden text. People searching on Playboy would instead find themselves clicking through to the website, where they’d be offered a chance to buy widgets instead of whatever they had been looking for. Playboy rightly complained about that use of its trademark.

With Google, and the enforcement efforts undertaking by trademark holders such as Playboy, that blatant tactic pretty much died out (as far as I know). But it hasn’t gone away entirely.

Suppose you sell widgets and, in writing your website pages, you insert a certain word, such as “Great”, into various parts of the webpage, such as the title tag and the meta tags for the description of the website and the keywords used on the website?

And suppose further, whether you know it or not, “Great” is also a company name or brand name used by one of your competitors?

When Great Inc. finds out about your webpage, they are very likely to send you a letter demanding that you remove the Great references from you webpage. If they’re not overly aggressive, the matter will rest if you comply, but if you resist, or the other company is aggressive about their brand, you could find yourself facing legal action for trademark infringement.

If the Great name happens to be a registered trademark, there’s probably not too much you can do to fight it; compliance is usually the safest route, unless you’re going to challenge the trademark registration itself.

But if the Great name or brand is not registered as a trademark, what then? Fight or switch (as the old cigarette add used to say)?

Great Inc., or its lawyers, will tell you all the effort they have put into building a business around the Great name and its Great products. Usually stretching over many years, and lots of advertising dollars, and broadly known reputation.

And what if you research Great’s website and find they are doing the same thing when it comes to your products? That they are taking your unregistered brand names and using them to tweak their search results, in order to draw traffic to their website and away from your website.

With an unregistered trademark, the answer is not quite so clear. The owner of the unregistered mark will have the burden of establishing that their mark has in fact become well known in the relevant trading area. They’ll need evidence as to revenues, advertising expenditures, the length of use of the mark, and so on.

And for a mark like Great, there’s a question as to whether the mark itself actually qualifies as a trademark, as opposed to being just a descriptive word that merely praises some characteristic of their product or service. (A question which gets back to the fundamental issue of how to choose a protectable trademark in the first place.)

These are the kinds of questions that get asked when potential trademark infringement claims arise. Trademark owners need to know their industry and watch over their SEO campaigns and website design.