Online Advertisers Beware - Trademark Infringement Not Illegal in Cyberspace

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Attention all business owners: The brand your business has worked to build is not fully protected on the web.

Attention all business owners: The brand your business has worked to build - is not fully protected on the web. According to a new book on search engine advertising, current trademark law doesn’t prohibit questionable search marketing tactics by competitors, and wise business owners need to understand what they can do to protect themselves.

In her new book, Search Engine Advertising, Buying Your Way to the Top to Increase Sales (New Riders Publishing 2004), Catherine Seda details how lack of precedent is enabling competitors to use trademarked terms in some forms of online advertising, and get away with it.

“Much to the dismay of brand holders,” Seda writes, “there’s no current law making it illegal to bid on another company’s trademarked terms on the search engines. That’s why advertisers must waste precious time filing infringement complaints, cease and desist letters, and occasionally even lawsuits against violators or search engines.”

For her book, Seda interviewed Deborah A. Wilcox, Esq., partner and co-chair of Baker & Hostetler LLP's Intellectual Property Litigation Team. Wilcox recommended that trademark owners diligently police the Internet for infringements of their valuable rights. “While the law in the area remains unsettled as to new practices by competitors and free-loaders,” Wilcox said, “it is vital to take action to protect against practices which amount to trademark infringement or unfair competition.”

Seda explains that complaints made by larger companies have prompted some search engines to post trademark infringement complaint procedures on their web sites. But she also says search engines are not proactively monitoring trademark space. Trademark infringement lawsuits filed against search engines this year by companies including American Blind and Wallpaper Factory and Geico may be stuck in court for a while, leaving brand protection completely up to the owners.

Seda recommends running queries in search engines for your trademarks to find out if your competitors are bidding on them. In some cases, she recommends writing a cease and desist letter, a sample of which she includes in her book.

“You’ll notice,” Seda writes, “that a handful of search engines request that you contact trademark violators before you ask them to evaluate the matter.”

Catherine Seda is the president and CEO of Seda Communication, an Internet marketing agency. The company specializes in search engine marketing campaign management and training.


Catherine Seda


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