Being first in the results list on a major search engine is the Holy Grail for most business websites, and competition for the top place is often fierce.
The recent row between leading search engine Google and BMW's German operation has highlighted the lengths that companies are prepared to go to in order to improve their rankings.
Some of these methods are perfectly acceptable, but some fairly widespread practices are not and could potentially leave you with a hefty legal bill.
In the fight to secure the best search engine ranking it may seem that all is fair, but an increasing number of companies are finding that they have unwittingly breached third party trademark rights.
In a bid to drive up their search engine rankings, companies often use competitors’ brands in meta tags, or hidden website coding, to drive traffic to their own site via search results for those brands. Additionally, companies may have bought adwords – search terms that entitle the purchaser to an appearance as a sponsored link in the search results – from search engines.
If the meta tags or adwords are trademarks belonging to competitors it could amount to third party trademark infringement, and may lead to legal action being taken against the company. Even if no trademark is registered a company whose brand is used without its permission in this way may be able to enforce other legal remedies.
Worryingly, many companies do not even know that the way that their websites are set up could put them at risk of breaching any laws.
Experience shows that website creation and maintenance is usually managed by technical or marketing staff who are often not aware of trademark rules. The fact that meta tags are, by their very nature, hidden from view means that many individuals within a company responsible for legal compliance are unaware that their websites even utilise meta tags.
Although UK case law has yet to rule on adwords, the recent Geico vs Google case in the United States resulted in an out-of-court settlement from Google in a case which involved the sale of a trademark protected word as an adword to a competitor of Geico. In the UK, a recent meta tag case resulted in a defendant paying around £70,000 in damages and costs.
Take this simple test. Go to any major search engine, such as Google or Yahoo!. Put in your company's name, strap line or any other of your trademarked wording. Have a close look at the results.
If you see your competitor's websites in the list they could be using your company's details as hypertext to divert clients looking for your website. Similarly, if competitors’ websites appear as sponsored links they may have purchased your company's name as an adword.
Have a look at the meta tags used in the offending page by clicking on view and then source. Scan the lines titled 'meta name' and 'meta content' for offending words or terms.
The test can also be reversed; look at your own website to establish what meta tags it utilises. If any competitor brands or words which may be trademarked appear you may have some cleaning up to do.
The best way to ensure that your company's website is not going to turn into a liability is to carry out a legal audit of the site to ensure that it is not harbouring potentially illegal meta tags or adwords. Be aware, however, that most companies offering website audits will only look at technical or marketing performance, not legal issues.
A legal audit of your website may sound a bit daunting, but it will ensure that you are not breaching trademarks rules, as well as ensuring that online contracts are enforceable and that all online assets are owned by your company.
The other action companies should take is to ensure that web developers and marketing employees understand the importance of not breaching trademark rules.
At the moment many websites are infringing third party trademark rules, albeit unwittingly.
There have been few cases brought so far, but the signs are that this is rapidly changing as the importance of e-commerce grows.
The next few years are likely to see a rash of high profile cases as trademark holders large and small seek to assert their rights. A few inexpensive actions taken now will help to ensure that your company is not in the firing line.
© Crimson Business Ltd. 2006