Law Technology Today From the ABA Legal Technology Resource Center
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The top listings in the major search engines are a business battleground, worth hundreds of billions of dollars every year. Thus, Search Engine Optimization (“SEO,” optimizing a Web site in order to rank at the top of the search results) and Pay Per Click (“PPC”) advertising have become the focus of many lawsuits, in particular Lanham Act cases.
This is an area often misunderstood, shrouded in mystery with misleading and ambiguous information. SEO services blind their clients with science, scams are common, and misconceptions abound. For many attorneys, dipping their toes into this this arena for the first time, it’s a black hole, and much is missed. All too often useful deposition questions go unasked, and critical documents are not requested. (One reason to hire an expert early in the case rather than at the last minute.) Here, then, are a few things attorneys should know.
1. The Keyword Meta Tag Misconception
The classic SEO misconception, the myth that just won’t die, relates to the Keywords Meta Tag: a piece of code containing keywords that is embedded into a Web page. Think of it as the tag that launched a thousand lawsuits; trademark owners hate seeing their mark included in someone else’s Keywords tag. The irony, though, is that Google and the other major search engines ignore the tag. So the contents of the tag don’t actually do anything, although the presence of a mark may indicate intent on the part of the defendant.
2. SEO is More Than Just Page Optimization
Another misconception is that SEO is just about putting keywords into Web pages. While this is an important part of SEO, the most important part of the art—something missed entirely by many attorneys—is the creation of links from other Web sites pointing to the site being optimized.
In many trademark cases the plaintiff, focusing on the website content, doesn’t realize that a defendant may also have created links from other sites linking back to the site, using the plaintiff’s mark as the link text.
3. There Are Tools to Help
Luckily for plaintiffs, a number of tools (such as Majestic.com) allow them to rapidly find these links. Enter the name of a Web site, click Search, and the tool will provide a list of pages linking to that site. You’ll discover where these links come from, whether the mark was used in the link text, the type of links created, and more.
Numerous other tools can help attorneys in search-related cases, such as the WayBackMachine (which allows them to look back in time and see what keywords were used in a site in the past), services that provide a history of a domain’s registration, tools that estimate the number of visitors going to a Web site, and so on.
4. Don’t Miss “Local” Search
Today’s SEO includes what is known as “local SEO,” the practice of ranking Web sites in the search engines’ local results. (Search Google for pizza, for instance, and it will display local pizza restaurants.)
One trick that few people are aware of is “location hijacking.” Business A grabs control of Business B’s listing, and changes the listing’s link to its own Web site. Searchers who should have gone to Business B’s site are “intercepted” and end up on Business A’s site. In some cases, malicious business owners have hijacked hundreds of their competitors’ listings; thousands of hotels, flower shops, and locksmiths, for example, have had their local listings hijacked, and there are lawsuits winding their way through the courts today related to this little-known trick.
5. PPC is an Important Piece of the Puzzle
Closely related to SEO is PPC, Pay Per Click advertising, little text ads at the top of the search results. Lawsuits have been sparked by the use of plaintiffs’ marks as keywords in PPC advertising, but it’s important to understand that keywords are used in two distinct ways. They may be used as triggers to cause an ad to appear; an advertiser may trigger an ad to appear whenever someone searches for a competitor’s mark. And of course the keyword may also appear in the ad text itself.
In general, courts have found that using a competitor’s mark to trigger an ad is not, in and of itself, a cause of confusion. Indeed, this is the major PPC networks’ policy, too. Both Google Adwords and Bing Ads allow advertisers to trigger PPC ads using competitors’ trademarks. However, displaying a competitor’s mark in the text of the ad is a different matter; both the ad networks and the courts understand that in some contexts doing so may cause confusion and thus be trademark infringement.
6. Cybersquatting and Domain Registration
Let’s not forget cybersquatting, registering a domain name that contains a competitor’s mark. Many attorneys are unaware that domain names are not owned, they are licensed. Although it’s common to talk of domain names as being bought and sold—domain registrars even use such terms—in fact domain registrants are merely paying for a license to use the domain, for a limited time, under certain conditions. One of these conditions is that the use of the domain must not infringe on another party’s rights, including trademarks. Many attorneys approach cybersquatting from the perspective of ownership, but viewing it from the perspective of licensing may be useful, as the “squatter” is often violating the original agreement he or she had with the registrar.
Search-related cases cover a variety of areas: SEO, PPC, Local Search, domain names, and more. When entering the field there is enough intricacy and misinformation to trip up the unaware attorney. The good news, though, is that there are tools and techniques available to help you break through the confusion and clearly see what a party to a lawsuit may—or may not—have been doing in their search-marketing campaigns, and of course a knowledgeable expert can help you navigate through the morass.
About the Author
Peter Kent is the author of 60 books on dozens of topics related to online marketing, SEO, and PPC, including six editions of a best-selling SEO book (SEO for Dummies). As an expert witness specializing in Internet technology and marketing, Peter Kent has worked with attorneys on cases involving the top technology companies in the world. http://www.internet-expert-witness.net
