Creating a Slippery Slope

Monday, December 17th, 2007 | Search Engine Optimization | No Comments

If I search myself on Google and find a cyber-gripe site about me and end up getting attacked because some crazy person found it and decided they wanted me dead – is Google also to blame because they indexed the site?

What if my biggest competitor runs an ad on prime time TV openly misleading the population about my company and product and sells the same thing with a typo’ed version of my product name – is CBS responsible?

I think we create a slippery slope when we are allowed to place blame, or cast a net of liability, regarding trademark infringement to search engines. The advertising and keywords that they put up are really just user-generated content when you boil it down – and more and more websites are insulating themselves from any liability whatsoever from user-generated content.

Just look at MySpace and your favorite networking sites. Simply saying – “But! Google (or MySpace) let me put it up! Why isn’t it their fault?” is not an excuse – my mom would say, if Google told you to jump off a bridge, would you?

On this issue, I stand on the side which feels that it’s up to businesses, and their representatives, to protect their brands, and feel that a reactive position by search engines with policies which remove the infringement, protect a trademark, and remove indexed pages from their cache is appropriate.

Web 2.0 is ALL about user-generated content and vamped up advertising platforms and I don’t think this issue (and the ones related to it) is going away any time soon.

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Tags: google, Keywords, MySpace, Networking Site, Search Engines, Trademark Infringement, Web 2.0

Who is Responsible?

Friday, December 14th, 2007 | Search Engine Optimization | No Comments

The other day a collegue and I had a discussion about the ads which are presented on typosquatted and cybersquatted sites. His point was that the ad presenters, for instance Google’s AdSense platform, were responsible for trademark infringements since they made a direct profit from the ads. I, on the other hand, respectfully disagree. Although Google does profit from ads that are sitting on these cybersquatted sites (more like pages), in the end the person who set them up to run also profits. Why does this matter? Because the person who set them up to run on the pages probably also registered the [allegedly] infringing domain name. If a criminal robs a bank (an inherently illegal thing, not unlike like trademark infringement) is the manufacturer of the get away car responsible too? The car manufacturer did serve, literally as a vehicle, to aid the criminal in his act, so are they liable? Of course not! Why then would we feel that Google was responsible for serving ads on a site which was cybersquatted or typosquatted when they didn’t register the domain name?

We see the culpability that search engines feel for trademark infringements reflected in their user agreements which speak to the issue, and even their policies for the protection of registered trademark terms too.

However, search engines aren’t proactive about protecting marks, they are simply reactive and I don’t know if that’s a bad thing. Should we put more weight on search engines to protect trademarked terms? Where does it become their responsibility?

I am always a champion when it comes to acknowledging intellectual property rights and protecting brands for businesses – but just because search engines provide a vehicle for advertising doesn’t necessarily make them responsible or liable for infringements.

I think it’s up to the trademark holder to protect their brand the same way they would protect themselves against any other attack. I caution that if we hold search engines responsible for selling advertising space which contains trademark infringements – where does it stop?

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Tags: google, Registered Trademark, Search Engines, Trademark Infringement

Bold Move by Dell – Part II to Post Below

Friday, December 7th, 2007 | Search Engine Optimization | No Comments

The lawsuit the article below speaks of was a bold move by Dell, and I think they’re going to try to pass new laws against domain tasting. With GoDaddy on their side, it’ll be interesting to watch. It seems that there are trademark infringement lawsuits which involve cybersquatting and typosquatting filed less frequently; usually the UDRP solves the issue or a C&D letter will do the trick when it comes from someone who you knew not to mess with: a company with a large amount of authority and prestige.

I read somewhere that 15% of all internet traffic is direct-type. I believe that this reason is one of the driving forces behind typosquatting and cybersquatting. We all know how easy it is to to misspell a URL – how many times have you been like “oops! I was trying to go somewhere else”? If you stay on that page and click on ads which display what you wanted, or in Dell’s case competitors products that users were searching for, you just made whoever hosts that page money.

Part of proving trademark infringement or dilution is the loss of profit from the infringer taking your term and using it in commerce. If there’s no profit then you don’t satisfy all the prongs to the infringement/dilution test and then where are you? If these domain name registrars weren’t running AdSense or some other type of pay-advertising programs on the landing or parked pages that were put up, I wonder if Dell would have such a strong case.

I worked with a domain name registrar who had just boatloads of domain names and participated in domain tasting. Part of my job was to broker sales and transfers some of the domain names, and part of it was to convince my client to drop the names that he had registered which contained trademarked terms or typos of trademark terms back into the marketplace. “But! They sent valuable traffic to my site!” he whined to me. After reminding him that we could find a smarter (read: completely legal) way to get more traffic to his site and he could sleep at night, he started listening to my ideas. My overall thought on this issue is that cybersquatting and typsquatting are cheap and dirty tricks to get traffic to your site. If you want to promote a site that means something to you, then you shouldn’t mind investing money in it.

This issue has been gaining momentum, and it’s so interesting to see the “old world” court system get involved in the “New Frontier”.

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Tags: Cybersquatting, Dell, Domain Name, Domain Tasting, GoDaddy, Trademark, Typosquatting

Typosquating – Dell Weighs In

Monday, December 3rd, 2007 | Search Engine Optimization | 5 Comments

This is one of my hot topics that I follow. I have been watching for well over a year, maybe two, and it is building momentum and getting more press on a regular basis.

My theory is that ad serving provider, Googleâ„¢ and Yahoo, have huge liability exposure to this as they profit directly from the sale of ads on these sites.
Dell Takes Cybersquatters to Court
PC Maker Alleges Domain Registrars Profited on ‘Confusingly Similar’ Names

By Brian Krebs
washingtonpost.com Staff Writer
Wednesday, November 28, 2007; 4:06 PM

Personal computer giant Dell Inc. is pursuing a major “cybersquatting” lawsuit against several companies that buy and sell Web site addresses, alleging that the entities earned millions of dollars from Internet traffic intended for Dell and dozens of other Fortune 500 companies.

Dell Takes Cybersquatters to Court
Washington Post – United States
The Washington Post examined Google’s connection to the typosquatting industry in a story published in April 2006. Google maintains that it specifically …
See all stories on this topic

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Tags: Domain Parking, Domian Tasting, google, MSN, typosquating, Yahoo