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Survival Guide for Online Trademark Infringement
by Dyanna Culp (Temos)
If the competition is appearing on search engines for your trademark company or product names, then you have Internet trademark infringement problems.
This often also includes use of copyright text pirated from your Web site. A year of Web trademark battles leaves you scarred from encounters with lawyers and search engine legal reps. It's a wild new world with inconsistent engine trademark rules and very little legal precedent.
Trademark problems are rampant online.
If you receive heavy traffic based on your good name, products or services, the vultures may soon look your way, if they haven't already. It's much less work to take advantage of the visibility you've built than to work on building a name for themselves. You'll find lawyers eager to take on your case. Companies are suing one another and search engines over trademark infringements, but the cost can quickly run into hundreds of thousands of dollars. I have personally seen a one month legal bill hit $200,000. If you're up against a financial giant, intent on stealing your new good name, then definitely forget the legal route. You would run out of money before they even considered backing down.
Vigilance is your first line of defense.
If your company has a strong engine presence, at least once a month do a search on the top engines (Google, Overture, MSN, AOL and Yahoo) for your trademark names. Carefully review both non-paid listings and paid ads. Go through at least the first two pages searching for any odd results. If a listing looks suspicious, go to their site. Check their html code for hidden text, alt tags and meta tags that might include your trademark names.
If you find evidence - document it.
Save their full html page code, save an adobe copy of the Web page if it contains copyright text on the visible page, and save an html copy of the search engine results where you found the listing. If you find no problems on their site then they are probably using a cloaked or redirect page which contains your trademark names. Google gives you the option of viewing the cached Google file for any suspicious results. You'll see the cloaked or redirect pages- save a copy.
Have dates for all trademark violation documentation.
Determine who owns the site and record the legal owners full contact information. Sometimes you won't find a site's registration info at a particular register, but get lucky at another registrar. If multiple sites are hijacking your trademark names, searching for owner data will be frustrating since Network Solutions and some other sites now limit you to two domain ownership queries. This procedure is supposed to prevent e-mail spammers from collecting massive amounts of potential targets. If you get locked out, clear your cache, wait an hour, and try again.
Look for domain registered owners at the following sites:
www.networksolutions.com/cgi-bin/whois/whois (The original domain registrar)
estore.netbenefit.com (A big player in the U.S.)
www.tv.org (.tv, .cc, .biz, .info)
www.web-solutions.dk (International domains in 185 countries)
Some search engines have paid ad trademark rules, some do not.
The first, and easiest, place to tackle your trademark problems is by contacting engines that have paid placement ads on your trademarks. Before contacting the engines, have a list of your trademark names with their numbers and dates issued. Some require more extensive documentation than others to prove you are the legitimate owner of the trademark names in question. Certain engines fully cooperate, others will refuse, and then there are those in the middle ground who cooperate for a price. It is sometimes difficult, if not impossible, to locate contact information for these engines. The following data was obtained after multiple legal negotiations.
Google (www.google.com): Requires documentation on trademark ownership. Does not require you to be a Google paid advertiser. Removes any ads on your trademark names, but their system does not prevent scoundrels from sneaking ads back in, especially if they are premium Google advertisers. Once you get the ads removed, you must perform periodic maintenance checks. Google ads also appear on AOL. For non-paid standard listings that fraudulently appear under your name - do a Google search for your names and at the bottom of the search page "Click On" Dissatisfied with your search results? Help us improve. This will lead you to a submit form for reporting sites that misrepresent themselves. If you found a cloaked or redirect page in the Google cache for the offending site, then report them to Google as a Spam Offender at www.google.com/contact/spamreport.html
Yahoo (www.yahoo.com): Yahoo receives paid text listings from Overture, but has their own banner and side vertical ads. Yahoo will remove someone from your trademark ads IF you pay for the same ad placements. If you are not willing to purchase the paid ads (based on impressions rather than PPC) then tough luck- the trademark offending ads stay.
Ask Jeeves (www.askjeeves.com): Complies, but paid ads will guarantee compliance. If you don't fork over money (for your own trademark names) others can begin to pop up in the paid "ask jeeves recommended" spot. Complaining will get them removed.
Ah-Ha (www.ah-ha.com): Feeds a multitude of smaller sites with PPC text ads. Ah-ha will honor your trademark concerns. Their system is pretty tight, but occasionally a problem listing will sneak in the back door from one of their small partners. Ah-ha is quick to respond to your concerns.
Find What (www.findwhat.com): Has an air tight system that protects trademark owners. Once trademark protection is initiated, their system will not allow any offenders to advertise on your names.
Epilot (www.epilot.com): A small outfit that runs a pretty tight ship. Very cooperative on protecting trademarks.
Overture (www.overture.com): They have a legal department that appears to be adamant about not honoring trademark ownership. This has landed them in some multi-million dollar lawsuits, but they aren't budging. Apparently allowing mass advertising on trademark names is making them sufficient money to cover the lawyers and still make a profit.
Kanoodle (www.kanoodle.com): They are following Overture's lead. Very polite, but won't budge.
MSN/ Looksmart (www.search.msn.com / www.looksmart.com): They are one and the same with paid inclusion on Looksmart providing the top results for MSN. They do not honor trademark ownership. The first to advertise with Looksmart will be the top MSN listings. For this reason it is critical to set up a Looksmart inclusion account for your trademark names, before someone else does.
After removing competition from paid engine ads, you must still monitor to make sure the ads don't reappear.
Trademark negligent engines do have a Relevancy Policy. Overture, Kanoodle and Looksmart/ MSN may leave you squirming with indignation, but their relevancy policy provides some leverage options. They require anyone advertising on trademark names to be" relevant." They must be comparing themselves to you. For example they may be claiming to have a better product or service. If their ad does not mention the trademark name they are paying to advertise on, then the ad is not relevant. If the ad does provide a comparison, but the clickthrough url does not contain your name in some form of comparison pitch, then again the ad is not relevant. You can document the non- relevant ads and submit a relevancy complaint to the PPC engines that do not honor trademark ownership. I have succeeded in removing many competitor ads using this method.
Part 2: Contacts for Trademark Complaints
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