NexTag markets my competitor with my images and product description

"our terms of service allow us to do anything we want with your content"

[spikey]

I wasn't quite sure where to put this; it's about copyright, but also ecommerce and comparative shopping engines.

I run an ecommerce site. We sell a variety of brand name products and use a variety of online marketing systems to do this.

We feed our product listings into a handful of comparative shopping engines. The usual big ones; Froogle, Shopping.com, Shopzilla, Pricegrabber and Nextag.

On Monday my legal people came to me telling me that, once again, a competitor had stollen our images and content and they were pursuing legal action. This happens all the time, images are really important in our market and cost a lot to do right so we often have small wannabes steal our images. However, this time it was a NexTag. The page my legal people sent me was NexTag page, it had our name at the top, a list of our products, with our images and descriptions but the links to buy the product went to our competitor, not us. The competitors name was listed directly under the "buy now" link.

"Hang on a sec" I told the legal guys and I called NexTag. I got a call back from a guy (presumably a lawyer) who told me that, by submitting my product feed to them I was giving them license to do anything they wanted with my images and content. This was all in their terms and service.

So, I've handed it back to our legal and said "go for it". I also pointed out to my legal that we have never actually given them these images, simply put the location of the images in our feed and that the images are digitally watermarked by us.

I fully recognize that someone on our side should have been more on top of their TOS. We started marketing with them ages ago when we were a much smaller company.

The lawyers will figure it out I'm sure, but I wanted to share this lesson in case it helps anyone else.

[jtara]

Do you have a trademark on your company name? If so, this is clearly a misrepresentation as to the origin or source of goods, and should be a trademark violation.

Personally, as a consumer, I see inclusion in NexTag as a negative.

[spikey]

Yes, we have a trademark on our company name. However, we are simply a reseller for a variety of other brand name products. The content and images in question are of those products. The manufacturer of those products, not us, hold the copyright to those brand and product names (we use them with permission). The competitor also sells these products (however, in this case, without permission from the manufacturer). The actual pictures and the descriptions of those products are ours. We could get the manufacturer of the products to request removal, but that wouldn't close what I see is the bigger issue, the fact that our images and copy are being used to promote the sale of the product at a competitor's site. It's kind of like Bill's car lot creating some very expensive pictures and descriptions for a Honda Accord (just an example) and giving those to NexTag to send buyers to their site. Then NexTag uses those pictures and descriptions to advertise the fact that Steve's car lot sells Honda Accords.
I'll let you know how our lawyers make out.

[BigDave]

jtara has a good point on the trademark, that you should look at.

You said that nextag put your name at the top of the page, and put shopping links to your competitor. That certainly sounds to me like brand dilution. They may be able to get away with the TOS claims on the copyright, but the trademark issues are another matter. I doubt there is wording in thier TOS that you license your trademark to them to use with a competitor.