NONE: Re: ONLINE-ADS>> WEB-AD '98 COVERAGE: 2/17/98 - TOP TEN MEDIA
Re: ONLINE-ADS>> WEB-AD '98 COVERAGE: 2/17/98 - TOP TEN MEDIA
Mark Pruner (markatty_at_ix.netcom.com)
Thu, 19 Feb 1998 17:05:21 -0500
BUYING TIPS
Sender: owner-online-ads_at_o-a.com
Precedence: bulk
First, I'd like to compliment Danny Sullivan on his truly excellent
service Search Engine Watch. If you are doing any marketing involving
search engines there is no better resource.
Some comments on his comments:
>... there is no law banning the use of trademarked terms in your meta-tags
As Danny later points out
> The key is whether a company is being deceptive...
If the company is being deceptive there are a variety of laws that can
company can be found to be violating including the FTC Act, the Lanham's
acts unfair trade practices provision and the many state Deceptive Trade
Practices Acts. Many of these laws give double or triple damages and
attorney fees.
>This issue has NOT got to trial. Of the three most prominent cases, two
>>were settled (including his) and one was given a preliminary ruling and
>>not pursued further, to the best of my knowledge.
>None of these cases established a legal precedent.
Most of the major Internet "precedents" are not final decisions rendered
after a trial. In our case, Insituform v. National Envirotech, there was
a settlement agreement, but the judge also signed a permanent
injunction, which can be cited to though its not nearly as persuasive as
a permanent injunction after the matter is fully litigated. In the other
case, Playboy Enterprises v. Calvin Designer Label, a preliminary
injunction was issued by the court. When injunctive relief is sought the
real battle is over the preliminary injunction, since these are rarely
overturned and the parties usually settle rather than further litigage
what is a foregone conclusion. Rulings in preliminary injunctions in
trademark area are regularly cited by litigants and judges.
>Moreover, all were based on around the issue of deception, not just the
>>use of meta tags. In Mark's case, for example, the company sued was >also
>using logos and slogans to confuse people who arrived at the site, >the
>case alleged.
In the Insituform case, the National Envirotech website had an image of
a cross section of a pipe and some phrases that appeared to be have been
taken from prior Insituform ads. The site did not use any of Insituforms
registered logos. Insituform claimed that the use of the images and
phrase was an infringement on the trade dress associated with Insituform
products; a much harder case to prove.
>In short, there is no "classic" case anyone can use as a guide.
I called this a "classic" case, because there were no other uses of
the words, "Insituform" and "Insitupipe" on the National Envirotech
website. The sole plausible reason for these registered trademarks to
be in the meta-tags was to mis-direct people to the Nationa Envirotech
website. As told to me, the judge was most interested in the meta-tag
issue. The judge clearly did not like what National Envirotech had done
with the meta-tags and did not really focus on the trade dress issue.
The images and phrases were mentioned more to show the defendants
"unclean" hands, than to get a judgement solely on that issue.
>First and foremost, simply including a term in meta tags is not a
>>guarantee that a page will to well for that term. The term will need >to
>be extremely unique,
I totally agree. Unfortunately for Insituform there trademarks were
good marks, i.e. unique and they had no website of their own at the
time. Set forth below is the ranking of the National Envirotech site and
total "hits" by search engine for each keyword.
Insitupipe Insituform
Altavista 1 of 1 77 of 171
Hotbot 1 of 2 23 of 349
Infoseek 1 of 4 20 of 140
Lycos 0 of O 0 of 47
Webcrawler 0 of 0 0 of 0
We had an obvious problem with Insitupipe, one of Insituform's principal
products. Search results for Insituform were also a problem on Hotbot
and Infoseek. As you can see, the less frequent the term the more
important are meta-tags. Hotbot also displayed the actual meta-tags in
their search results so on that on Hotbot the meta-tags were not
"invisible".
As Danny observes there are a variety of reasons that it might be
reasonable to put a competitor's trademark in your meta-tag, but unless
you are devoting a significant amount of attention to the competitor's
product, such as a full page side by side comparision, I think you put
yourself at substantial legal risk by using competitors trademarks in
meta-tags. Obviously, simply mentioning the competitors name in your
website will get you indexed under that word. Mentioning the mark in
both the text and the meta-tags may get you higher ranking and it may
get you sued.
As you can see from the Insitupipe numbers, if the word is rare a
meta-tag can be very effective, however, just using the term in an
innocuous manner in the body of the page may accomplish the same thing,
e.g. a chart showing some characteristic you excel at and listing all
your competitors names/products at the same time. While the metatag
tactic may work, if the keyword is rare, its also not likely to be
searched very often so you have the legal risk and the reward of a few
click throughs may be limited.
My bottomline, using competitors trademarks in meta-tags can get you
sued. You may ultimately win, but at the present time all three
websites that got sued have either been ordered or consented to remove
the meta-tags.
[N.B. The above is not legal advice, which is only rendered after
entering into a signed engagement agreement. Your facts will vary and
your outcome may also.]
_______________________________________________
Mark Pruner, Esq.İİİİİİ mark_at_webcounsel.com
Web Counsel, LLCİİİİİİİİİİİ 914/251-9300 (voice)
Suite 211İİİİİİİİİİİ 914/251-1273 (fax)
108 Corporate Park Driveİİİ http://www.webcounsel.com
White Plains, NY 110604İ İİİWebsite Based Marketing
mark_at_webcounsel.com
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