Keyword Use and Trademark Infringement

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What are Keywords?

Keywords are specific words, terms, or phrases used by search engines to guide Internet searchers to a particular website or web advertisement.  Also called “adwords”, these are often sold by search engine companies to different businesses or advertisement firms.  For example, typing in the keyword “running” might direct the searcher to advertisements for running shoes.  The use of keywords is a newer development in Internet usage.

Can you use Trademarked Material in Keywords?

Generally speaking, purchasing trademarked material for keyword purposes in not illegal.  However, such practices can lead to legal violations and lawsuits.  This is mainly because of the potential for abuses like false advertising and trademark infringement.  The line between acceptable practices and legal violations is a very thin one; and since keywords are such a new phenomenon, the rules regarding their usage can be somewhat tricky.

For example, typing in the word “Nike” may lead you to an ad or a website owned by a company called “Nikey”.  This is legal in most instances.  However, if the Nikey website claims “our products are licensed by Nike”, when they really aren’t, this is definitely a trademark violation. 

As with most trademark infringement lawsuits, the test for whether a violation has occurred depends on whether the average consumer would be “confused” by the advertisement or claims.  If your work involves the use of keywords, you may wish to avoid altogether any uses that are confusing or that can lead to an infringement lawsuit.

What About the Use of Trademarks in Meta-Tags?

Similarly, the use of trademarks in Meta-tags and other “meta-data” can present legal pitfalls.  Meta-tags are part of the HTML code that’s embedded in the script for a web page.  Like keywords, metatags can affect a search engine’s ability to locate that website when an internet searcher is surfing the web. 

Some common practices involve web designers embedding trademarked words or phrases in the website’s meta tags.  This can be difficult to detect, since the meta tags don’t directly appear on the visible website itself- they operate “behind the scenes” of the website. 

Improper use of trademarked material in meta tags can also lead to an infringement lawsuit.  For example, if the operator of a website includes trademarked phrases in the meta data for the purpose of diverting consumers to their website, they may face a lawsuit by the owner of the trademark.  Again, this will depend on whether public consumers are sufficiently “confused” by the use of the trademark to support a lawsuit. 

How Can Keyword Use - Trademark Infringement be Avoided?

Liability can sometimes be avoided if the website operator properly indexes their data and places a disclaimer on their website.  They may include a sentence at the bottom of the page stating, “This website is not affiliated with, endorsed, or sponsored by X Company.  ______ is a registered trademark of X Company”. 

However, even with such a disclaimer, it is possible for a lawsuit to be filed against the website.  Most major businesses and companies hire web specialists whose job it is to search the internet for keyword and meta-tag abuses.  At this point in time, it’s best to completely avoid any ambiguous or confusing uses of trademarked material in a website. 

A successful trademark infringement lawsuit may result in the infringing company having to pay monetary damages to the trademark holder, and to stop performing their infringing activities.

Do I Need a Lawyer for Issues With Keyword Use and Trademark Infringement?

As with most issues involving the Internet, the laws governing keyword use and trademark infringement can be very complicated and technical.  If you are unsure at all about the legality of certain practices, you should avoid them.  You may wish to contact a lawyer if you have any issues involving trademarks and keywords.  A lawyer can help represent you in court if an infringement lawsuit becomes necessary.

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Last Modified: 04-04-2012 05:08 PM PDT

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