Using Keywords for SEO and PPC

Using Keywords for SEO and PPC

Merely having a website is not enough anymore; you have to get it seen!  After all, what good is a website, if there is no traffic?  Enter search engine optimization (SEO).  Your web developer can certainly let you know what you need to do to get your website at the top of the engines, but it is your responsibility, not that of your web developer, to make sure you are doing so safely and legally.  Here are a few things to consider while you are optimizing your site…
One method of promoting your site is through the use of keywords either through metatags or Pay Per Click advertising.  Metatags put keywords as part of the code of underlying code of the website and can usually be viewed by using tools on your web browser.  Metatags are HTML codes that are inserted into the header or body of a web page and are not usually seen by those viewing your pages in browsers, but rather utilized by search engines to classify, describe and find your page. Pay Per Click is an advertising model used by search engines whereby website owners bid on keywords relevant to their target markets. 

The legal and moral question that presents itself, in my opinion, is whether you should use your competitor’s trademark as keywords to promote your site.  For example, if you’re selling Hershey’s® chocolates, should you use Godiva® as one of your keywords in an attempt to redirect an audience searching for Godiva®, to ultimately purchase your Hershey’s®? I take a conservative approach; I advise against it.  Use of another’s trademarks as your keywords can be potential infringement.  After all, you are using their trademark for your commercial advantage. 

Case law to date has gone back and forth on this issue of whether it is fair use or a likelihood of confusion turning primarily on traffic diversion from the trademark holder’s site and whether it can be confusing the consumer.  Use of the trademark as a keyword for commercial advantage as well as if the consumer can see the use of the trademark (which constitutes ‘in commerce’) ie use in metatags as opposed to Pay Per Click use of the mark, is important as deciding factors.

As a trademark holder, you have a duty to monitor your trademark. This can be done through monitoring services or search for your trademark on search engines consistently to see what comes up.  An easy way to do this is set up an Alert for your trademark.  It is not as exhaustive as a monitoring service, but it’s a good start.  If you suspect that a competitor is using your mark as a keyword, you should aggressively defend your mark.  Your first course of action is to send a cease and desist letter (this is a letter notifying the infringer that you are aware of their infringing use of your trademark and are demanding that they stop) to the ‘infringer’ and if that fails, search engines have policies for remove infringing material.  Although, in my experience, the infringer will usually stop once they receive a cease and desist letter.

If you are a web designer, developer and/or marketer, it would be a good idea to work into your agreements with your clients that your client is solely responsible for picking the keywords and/or metatags.  But, make sure that’s true!  As a web developer, you could be found secondarily liable if the court decides there was infringement by using the keyword.
Ultimately, whether use of another’s trademark as a keyword for your website is considered infringement is still not clear cut.    If you do decide to use someone else’s trademark as your keyword, proceed with caution.  You may be putting yourself in a position to defend yourself against a cease and desist as well as a lawsuit.  What is certain is that the lawsuits will keep coming because interestingly enough, trademark holders get very touchy when you try to use their mark for your commercial gain… 

About Natalie Sulimani
Natalie Sulimani, founder of Sulimani Law Firm, graduated from the University of Manchester at Kiryat Ono, Israel with an LLB. Shortly after graduating, she moved back to New York to pursue her career in law where she worked in commercial litigation and later as in-house counsel for a start up company. In each of her roles, one theme kept presenting itself: the importance of intellectual property in the online world. Recognizing this critical new niche in the legal world, Natalie honed her skills to understand trademark, copyright and internet law and technology, in general. Now she pursues this field through her own practice and brings that knowledge and experience to you. Natalie lives in New York City with her husband Ben and sons Gabriel and Eli.

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