What good is a website, if there is no traffic? Enter SEO.  Your web developer can advise you how to hit Google’s Top 10, 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, to make sure that while you’re not stepping on legal toes, you know the ins and outs of limiting your liability (and your conscience.)

Competitor’s Terms

The big question that presents itself 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®?  While this may seem like a shrewd and creatively crafty move (which all entrepreneurs need to make use of from time to time); I take a conservative approach and advise against it.  Use of another’s trademarks as your keyword can be potential infringement.  After all, you are using their trademark for your commercial advantage.  Although it can be an attractive option, if you sail this course you may be landing yourself in legal trouble.

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 to the consumer as well as whether the keyword is considered ‘use in commerce’.

On the opposite side, as a trademark holder, it is your responsibility to monitor your trademark. This can be done through monitoring services, or you can 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 to see how your mark is being used in commerce.  It is not as exhaustive as a monitoring service, but it’s a good (and low cost!) 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 to the ‘infringer’ and if that fails, search engines have policies for removing infringing material.

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 advantage.

Posted on Monday, April 13th, 2009 at 9:00 am and is filed under Business Growth, Startup Advice. You can leave a response, or trackback from your own site.