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The Legal Question Each of
companies offering these services has a policy designed to ensure that a web site only buys keywords related to their content, and their review process is designed to keep cybersquatters from hijacking popular names and products. Unfortunately, there is no way to guarantee that any one of these keyword ownership services adheres to any naming standard, or even ensures that any purchaser has legal right to any of terms they are buying. This means that rights to copyrighted material like "Pepsi" or generic words like "business" could end up in hands of first buyer. While Pepsiis a well known brand name, there are millions of copyrighted and trademark protected terms, covered in multiple jurisdictions. For these services to police copyright and trademark infringement would not be cost effective or practical.
In summer of 1999, U.S. Court of Appeals for Ninth Circuit, denied Playboy's request for an injunction barring a search engine from selling advertising based on terms playboyand playmate. In precedent setting ruling regarding keyword advertising, Judge Stotler of United States District Court in Santa, Ana, California, dismissed a lawsuit brought by Playboy Enterprises against search engine Excite, Inc. and Netscape. The ruling limited online rights of trademark holders, as it recognized that a trademark may be used without authorization by search engines in advertising sales practices.
Playboy claimed that search engines were displaying paid banner ads from pornographic web sites whenever "playboy" or "playmate" were used as a search term. As owner of trademarks for both terms, Playboy argued that use of its trademarks for a third party sales scheme was trademark infringement and branding dilution.
In ruling dismissing Playboy's case, Judge found that Excite had not used trademarks "playboy" and "playmate" in an unlawful manner. This was because Excite had not used trademarked words to identify Excites own goods or services and therefore trademark infringement laws did not apply. It was further determined that even if there was trademark usage, there was no infringement because there was no evidence that consumers confused Playboy products with services of Excite or Netscape.
What about within Meta Tags? Is it illegal to use trademarked terms in your meta tags? Sometimes. The problem occurs with how and why you are using terms. Web sites that use tags in a deceptive manner have lost legal battles. However, legitimate reasons to use terms have resulted in successful defenses.
In a case involving Playboy, firm was able to prove trademark infringement, based on use of their trademark in meta tags, url and content on web site. The case was filed by firm against web site operators for stuffing their web pages with words Playboyand Playmatehundreds of times. Furthermore, defendants were also using terms Playboy and Playmate in site names, URLs, and slogans. In this case Judge ruled for Playboy, as there was a clear case of trademark infringement.
In separate case, Playboy vs. Terri Welles, court refused Playboys request. The reason was simple. Terri Welles was Playboy's 1981 Playmate of Year. She had used terms "Playmate" and "Playboy" on her web pages and within her meta tags, and Court felt she had a legitimate right to use them to accurately describe herself, and to ensure that search engines could catalog her web site properly within their databases. Playboy's appeal was dismissed on Feb. 1, 2002.
In Summary It is clear that if you have a legitimate reason to use a trademarked word or phrase in your web site you can. You may also rent their ownership from one of keyword ownershipcompanies. Be careful, though, it is possible that may get sued.
Does technology work? Yes, but only for some of approximately 3% of Internet users worldwide who have installed any one of a variety of competing plugins that enable this type of searching. I stress a fraction of 3%, as you would need to buy keywords from each individual vendor to ensure reaching all 2%.
