One of the more overlooked issues when launching or operating an online business can be hiding in the background: unauthorized use of another company’s trademark may be buried in your coding language, Adwords or even Twitter hashtags. A business owner or CEO may be unaware of even the possibility of a problem, especially when a site’s metadata, such as search engine optimization tags, is delegated to contractors. But, warns Dallas e-commerce attorney Gary Sorden, “the SEO company is an agent of the company that hired them, so you may not know that there’s this infringement in your metadata, but it’s still on you.”
Search engine optimization (SEO) is a detailed and increasingly elusive process. The idea is that we’re all trained to look for what we want by typing search terms into a search engine, and the first page of results will most likely dictate where we click from there. “It’s all about getting that first page,” says Sorden, and the difference in where you land can make or break a business. How results are kicked back is part of the murky mystery that is the internet, but SEO companies often plug coding language and tags into your website’s underlying metadata to match search terms used by people looking for what you’re selling.
“Let’s say you’re selling a soft drink, and what if you use a tag like Coke or Pepsi? Obviously, that’s going to shoot you way up there. Those are your competitors, but those search terms will probably bring you more traffic. That’s a pretty good argument for trademark infringement,” Sorden says.
“A lot of my clients spend lots of money on SEO. Maybe the SEO company doesn’t know something is trademarked, maybe they do; but bottom line, that’s not their objective. Their goal is to get you up in the rankings.”
While there is some disagreement as to whether metatags in fact accomplish SEO, and legal analysis can vary based on an adjudicator’s technological sophistication, it remains an open question whether this type of use constitutes infringement. To date, cases are split on their analysis, questioning whether metadata is a “use in commerce” or results in a “likelihood of confusion,” both requirements of the Lanham Act (the federal law governing trademark infringement). Sorden says that the law is in flux, but “seems like something you shouldn’t allow.”
Yet another hurdle to liability for infringement hinges on showing damages stemming from the unauthorized use. Analytics may indicate a decrease in traffic to your site, and/or a corresponding increase in traffic to your competitor’s site. But does this link to a drop in your sales, or to an otherwise unexplained increase in their revenue? It may be hard to say. Even more attenuated would be alleged infringement in something like a Twitter hashtag, where it would be complicated to demonstrate that this created a likelihood of confusion causing a quantifiable harm.
Perhaps the key takeaway in this scenario is that uncertainty in the law makes defending a lawsuit costly. It’s usually better to avoid one if possible. In addition, if your internet exposure is global, bear in mind that many other countries have interpretations of trademark law that may outlaw your practices. If you have concerns about metadata trademark issues, whether for purposes of your own website optimization or because you think a competitor might be misusing your trademark, talk to an experienced e-commerce lawyer.