Sept. 01,  ISSUE #054
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Search Engine Keyword Trademark Infringements

On May 19, 2004, auto insurance company Geico sued Google and Overture for allegedly violating its trademarks in search-related advertisements, in the latest legal salvo against the Internet companies.

The insurer charged the two companies with infringing on its trademarks when they sold them as keywords to Geicoís rivals, so that the protected terms could appear in sponsored search results. According to the suit, that practice causes consumer confusion, in violation of the Lanham Act, the primary federal law covering trademark registration and protection.

This isnít the first time Google, Overture or other PPC search engines get into legal trouble over keyword trademark infringement issues. This trend is actually expected to grow, as more and more companies discover the high conversion features of keywords using major brand names or trademarks.




Smart trademark owners have always been vigilant and continue to engage in all forms of trademark protection battles. However, with the number of trademark infringements involving branded keywords steadily increasing at an alarming rate, search engines have started to respond and take action.

Google and Overture now post on their websites specific copyright and trademark infringement complaint procedures, along with detailed instructions on how to go about this growing problem. Most search engines today will remove competitorsí paid listings of registered trademark owners who lodge an official infringement complaint.

Remember that itís always the trademark ownerís responsibility to be vigilant and proactive. It isnít the search enginesí mandate or their duty to police any of these actions. So, trademark owners, the time has come to protect your marketable assets.

How to file a complaint with the search engines

Before taking any step in complaining to the various search engines, most will strongly encourage you to contact the offending party directly, letting them know that you are considering such actions serious and that you will take every step to defend your companyís rights.

Some search engines even post standard Cease and Desist Letters on their sites. Print out such a letter and email it to the infringing party, and then you should send it by regular mail, preferably using a registered letter. If you will be using such a standard cease and desist letter, have it sent directly from your lawyers. The offending party will then know that you are serious about this matter and should treat it accordingly.

Many attorneys will tell you that about 85% of trademark infringement cases are solved upon receipt of such a cease and desist letter.

Assuming the offending party has not responded within a reasonable amount of time, say about 10 days, the second step you need to take is to gather all the information you can in preparing your case for the search engines. Simply run a query in Google, Yahoo, AltaVista and Overture for all your trademarks and brand names. With it, include your company name, services, products or any slogans your company uses in any of its advertisements, including all its offline pamphlets or catalogues. Also be sure to send them a copy of the cease and desist letter your lawyer sent them.

Before emailing your complaint, be certain that all your information is included in the report, beginning with your full contact information, a list of all affected trademarks, service marks or brand names, plus all registering information, if you have it handy.

You will also need to send them a description of the trademark violation (s). Also include the way the infringing party uses your trademark in their ad listings or in their ad copy.

After that, you will need to include a status of all your communications with the offending party, if any, plus a complete list of all the affected URLís associated with all their trademark violations.

The above steps are the essential actions all search engines expect you to take in any trademark or copyright infringements. Since each search property varies in the exact procedures to take in such cases, you will need to carefully review their exact rules and instructions in filing an official complaint.

Where trademark infringement is leading to

In August of 2003, French company and handbag maker Louis Vuitton filed a lawsuit against Google and its French subsidiary for trademark infringement. Two months later, French firms Luteciel and Viaticum also sued Google for trademark violation and collectively won $89,000 in damages. That settlement was viewed by many as significant and many said it created a legal precedent, even if it happened in an overseas court.




It is hoped that new laws governing the use of registered trademarks or service marks will be enacted soon. Legal observers predict it could take a few years to determine how comparative advertising, fair use provisions, unfair competition, the First Amendment Right (free speech), the Lanham Act and other such issues can be effectively addressed in an orderly fashion.

In the mean time, trademark owners and companies owning major brand names are strongly encouraged to be vigilant in this matter.

 

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