IndustryTrademark Protection, Copyright and Search Engines

Trademark Protection, Copyright and Search Engines

What do you do when someone is playing fast and loose with your intellectual property online? A panel of legal experts offer suggestions for a range of potential scenarios.

What do you do when someone is playing fast and loose with your intellectual property online? A panel of legal experts offer suggestions for a range of potential scenarios.

A special report from the Search Engine Strategies conference, March 27-April 2, 2006, New York, NY.

By now, most are familiar with the infamous Geico case, France’s penchant for protecting brand names and the pending clickfraud case. Therefore, it was a pleasure, to hear views on meatier topics covered at the 2006 SES New York panel “Trademark Protection and Copyright.” Led by Jeffrey Rohrs, President of Optiem, LLC (and a J.D. himself), the panel included David M. Adler, Esq of D.M.A. Esq. and Associates, Peter D. Raymond, Partner with Reed Smith and Deborah Wilcox, Partner with Barker and Hostetler.

The session began with agreement that technology and what humans are capable of doing with technology runs much faster than the law. It could be said that we are currently retrofitting offline copyright law to online media, and only when a case reaches critical mass will there be an opportunity to evolve the law.

Dealing with Trademark Infringement

The first practical application focused on the use of trademarks in pay-per-click ads, as evidenced by Mazda’s keyword purchase of “Pontiac” shortly after Pontiac launched a television commercial urging viewers to Google “Pontiac.” So while Yahoo has recently ceased selling competitive trademarks, Raymond stated that comparative advertising is legal as long as it is truthful. Mazda’s copy and landing page, for example, in no way misled consumers.

When it comes to copying online content, each use needs to be examined on a case-by-case basis. One must prove that harmful intent or that the second party is profiting off of said content. On this note, the panel acknowledged that many sites that scrape content from other sites are running Google Adsense, and that the owner is indeed profiting off of said content. The panel agreed that in most cases, people are reasonable and will remove content if the originator simply asks.

When prompted about altered or excerpted content, copyright laws exclude facts, so it is legal to post facts taken from another written account. Raymond brought up the fact that if a publisher did not want his content available in a search engine’s index, he should simply use a robot.txt file to instruct search engine crawlers to avoid the content.

Another unique legal point was that publishers cannot be held liable for damages. Both Wilcox and Adler stressed that to take legal action against an infringer, it is critical to have federal copyright registration, and that a serialized copyright certification is only about $30.

Modifying Press Releases: Going Too Far?

Most folks are aware that optimized press releases provide additional shelf life and reach. However, what are the legalities of modifying press releases? Having stated that it is legal to republish facts, and asserting that it is the press’ responsibility to turn releases into stories, where does one draw the line?

The case in point was the modification of a hyperlink in a press release being modified to the competitor’s site, effectively altering the meaning and intent behind the release. Wilcox and Raymond disagreed on whether such alteration would be actionable in court, but ultimately agreed that actual damages would be hard to estimate. A few audience members, on the other hand, vehemently disagreed.

The final, unanswered question is whether links will be considered copyrightable in the future. On a more depressing note, it was suggested that our current judges and law clerks are not sophisticated enough to understand the granularity of such a case.

Along the lines of copying content was the topic of outright pirating of an entire site. Rohrs suggested that website owners monitor new content on the web by setting a Google or Yahoo alert for particular copy. To gather evidence, Adler advised firms to print off copies of the offending site, but reminded that hosts cannot be held liable. Once again, most people are reasonable and will take down pirated content if prompted by a cease and desist.

Helpful Resources

Mr. Rohrs was kind enough to conclude with a list of helpful resources:

Sara Holoubek is a free agent consultant for the interactive advertising sector and its investors. She can be reached at [email protected].

Search Headlines

NOTE: Article links often change. In case of a bad link, use the publication’s search facility, which most have, and search for the headline.

Google to raise $2.1 billion through stock offering
MarketWatch Mar 29 2006 11:56PM GMT
Google to acquire 5% of AOL for $1 billion
Crains NY Business Mar 29 2006 11:31PM GMT
When computers do the news, hoaxes slip in
Christian Science Monitor Mar 29 2006 11:03PM GMT
Competitor’s Keyword Ad Purchase May Be Trademark Infringement
Eric Goldman’s Blog Mar 29 2006 10:59PM GMT
Microsoft, Yahoo eye potato country
CNN Mar 29 2006 6:36PM GMT
Google’s Hidden Payroll
CBS News Mar 29 2006 6:32PM GMT
Google accused of bio-piracy
ZDNet UK Mar 29 2006 5:34PM GMT
China’s Search Engine Industry Faces Slowdown
ChinaTechNews.com Mar 29 2006 4:37PM GMT
All The News That’s Fit To Google?
CBS News Mar 29 2006 2:21PM GMT
Sue Google, Torrentspy says
InfoWorld Mar 29 2006 10:53AM GMT
Yahoo Japan to take stake in online bank
ZDNet Mar 29 2006 7:21AM GMT
U.K. Online Ad Spend Skyrockets
ClickZ Today Mar 29 2006 6:44AM GMT
Internet users searching for bird flu end up at cdc.gov and Google News
ZDNet Mar 29 2006 12:53AM GMT
Google admits music shindig, but denies music store rumor
CNET News.com Mar 28 2006 11:02PM GMT
Search Engine Seeks With Sketches
Discovery Channel Mar 28 2006 10:30PM GMT

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