Avoiding Online Trademark Infringement and Counterfeiting Starts With Awareness
Trademarks act to identify the source of a particular good or service. To be effective and drive sales, they generally must be visible to a certain segment of consumers. On the Internet, that “visibility” may be achieved through several marketing and search engine optimization techniques. The following discusses various ways in which unscrupulous infringers trade off the trademarks, trade names, and goodwill of trademark owners.
1. Domain Names – Certain usage of trademarks or confusingly similar variations as domain names may constitute trademark infringement. In addition to the remedies available against cybersquatters under the Anticybersquattering Consumer Protection Act (ACPA), 15 U.S.C. Section 1125(d), a trademark owner may file suit in state or federal court. Monitoring domain name registrations is an effective initial step in averting infringement. Trademarks, trademarks plus additional verbiage, and obvious typos (known as “typosquatting”) should be considered in a monitoring program.
2. Meta Tags and Source Code – Sophisticated infringers will insert trademarks into the source code of a website to attract consumers to the site when entering search engine queries for the trademarks. These tactics include meta tags, title tags (located at the top of the page and usually displayed at the top of the browser window), and header tags (code associated with key text on the website page). Portions of the source code can be viewed by selecting “Show Source Code” or similar options depending on how what browser is used. Along with website copy, usage of trademarks in source code is likely a reason why a web page shows high in organic search engine results.
3. Website Copy – The actual text on websites is one of the more obvious ways to infringe a trademark and works well for search engine optimization. This type of infringing trademark usage can typically be found by using a find search of the website page(s).
4. Keyword Advertising – Trademark infringement in keyword advertising also known as “pay-per-click” advertising is one of the most insidious due to the effect it has on some trademark owners. In keyword advertising, someone bids on a particular keyword or phrase entered by the public into a search engine. The winning bidders typically appear as ads or results in a “paid sponsors” area of the search engine results page, usually at the top or right side of the page. Trademark infringement in keyword advertising occurs in two possible ways. First, the banner ad may contain infringing use of the mark and usually includes a link to a website. This may divert people looking for a trademarked product or service to the website of a third party. Second, the trademark may be used in the keyword bidding itself, which likewise may divert business from the legitimate trademark owner. The latter is particularly egregious because the price for keyword advertising is usually based on an auction format, and increases as the number of bidders for the term increases. Therefore, third-party infringers can drive up the cost for the trademark owner to bid on its own trademarks in keyword advertising.
5. Social Media – In addition to the obvious problem of infringers acquiring the user names of trademarks or brands (also known as “username squatting”), trademarks can be infringed in a variety of ways in social media. These include posts, domain name links, and background information. Companies should periodically monitor their trademarks on social media to prevent future infringement and stop innocent infringement as early as possible.
6. Internet Directories – Due to the numerous Internet directories that exist, unscrupulous trademark infringers can list their website or business (with a link to their website) in these directories and achieve misdirection of consumer searches for a trademark. This type of trademark infringement can be particularly difficult to remedy due the large number of directories, the relative lack of self-policing, and international distribution of operators. Typically, a settlement with a trademark infringer should include a requirement that a de-identification request be made to any Internet directories that contain infringing references or content.
7. Blog Posts, Article Sites, and Other Commentary – Blogs, article submission sites, and other sites allowing for commentary are an excellent opportunity to build inbound links and thereby increase a website’s search engine optimization. Unfortunately for trademark owners, these sites provide an equally excellent opportunity to divert business by using the trade name or trademark of others.
8. Search Engine Directories – Similar to Internet directories, search engines provide listings, such as Google Local (now Google+), where companies can list themselves along with their address, basic business information, description of services/goods offered, and website address. These listings are ripe for one business to claim the identity of another. Trademark infringement can also occur in the description of the business or services/goods offered. Most search engines provide a process to “claim” a listing or to transfer it to the rightful owner. Companies should be proactive in this area by claiming their listings before adopted by third-party infringers.
9. Website Hijacking – One of the scariest new developments in trademark counterfeiting is website hijacking. This new form of infringement is likely a response by infringers to the success brand owners have achieved in shutting down online trademark counterfeiting. Website hijacking is where an infringer hacks a website, typically a corporate one and sometimes one owned by a well-known company, sets up a sub-domain, and operates a counterfeit online store selling infringing products. The company many times is oblivious to this, and only finds out after the brand owner files suit to stop the infringing online store operated unknowingly by an innocent third-party company. This technique is particularly devious in that it provides the counterfeitert cover and time with the court system to move their operation before the brand owner can get an injunction in place.
Despite the peril posed by the Internet to trademark and brand owners, there are many effective strategies to stop infringement. Monitoring trademark usage is an effective first step. Contacting intellectual property counsel and sending cease and desist letters are additional steps that may be effective before filing suit for trademark infringement.
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