Forum Moderators: not2easy
We seem to be getting more and more companies contacting us saying "... you are using our brandname without permission etc. etc.. please remove or we will take legal action"
Fair enough, we remove the link (and thus the pr) and that's that. However, what is the real legal position? We get our listings from Inktomi or Mirago etc. and they have done all the spidering and populate our pages accordingly. The sites do not say in the metatags "no index" so they eventually find there way onto our pages.
Consequently, we may list "Brandname widgets" low on the page, with PPC listings above. I suppose we could be accused of ranking because of the brandname, but profiting from the ppc who are their competitors.
Anybody got any experience of this. I know a lawyer needs to be spoken to, but you know what lawyers are like... :)
As a directory we list other sites using brandnames in their titles.... we don't know if they have permission. So in some cases the brandname is appearing without a link to the real brandname site.
I've got a feeling this is a big issue about to explode...
Any thoughts?
First off, Brand name is coverd by trademark, not copyright law. There is good coverage of tradmark law at Bitlaw [bitlaw.com].
What it comes down to is that you are not trying to trick anyone into thinking that you are that brand, so you are relatively safe.
If you state that the trademark belongs to the owner and you are not that owner, you are even safer.
Can they still sue you? Of course they can, this is the USA after all. But most of them are just sending out scare letters.
As for title tags, it is kind of interesting how the name of that tag corresponds with something that is specifically NOT protectable under copyright law.
From the copyright FAQ: "Copyright does not protect names, titles, slogans, or short phrases. "
Which doesn't mean that it is impossible to get copyright protection on the title of a page, but it sure doesn't sound very easy either.
However, I'm not a lawyer, but I've found commercial/business lawyers generally know jack about this sort of thing. You'd need to find someone that specializes in Intellectual Property/Trademark or Internet Law.
If the other party's website or company name is trademarked, it would be their right to ask you to remove it. In that case you would be using their trademark to give your page validity and thus make a profit.
That is simply incorrect. You have no control over the use of your mark when it comes to identifying your goods.
I can write whatever I want about the products that go by the registered trademark "Jeep", and I can call them by their registered names. I can sell big old bumpers that attach to your "Jeep", and therefore make money by "using" the trademark in that way.
What I cannot do is represent that the bumper *is* a Jeep brand bumper instead of being a bumper that fits on a Jeep brand vehicle.
Also, I am allowed on my personal website to refer to my friend's Toyota Land Cruiser FJ-40 as a Jeep. But it would be infringement for Toyota to do that because it would lead to both confusion and dilution.
But even Toyota is allowed to use the trademark "Jeep" in its proper context when referring to Jeep brand products, such as when doing a product comparison. But if they do, you can be sure that they will have a little disclaimer on their page stating that Jeep is a registered trademark of DC.
BigDave is right about trademarks, in my non-lawyer opinion. However, you may be playing in a gray area if, in effect, you use a bunch of information about one trademark to promote another product. For example, if you have a page of listings about Jeep stuff, with the trademark embedded throughout, and have a big ad for Hummers as the sole action item, one might construe that you were using the Jeep trademark solely for the purpose of selling Hummers (or profiting from the contextual ad). This isn't entirely clearcut - if you wrote a review of the new Jeep and happened to have a Hummer ad on the page, you'd probably be fine. You could even write an article about how the Hummer is superior to the Jeep and be fine, at least from a trademark standpoint.
The key thing about intellectual property law is that an aggrieved trademark or copyright holder can always decide to sue you, even if your use is almost certainly fine. If they have vastly more resources than you do, they can "win" even if they lose in court a year or two later. Big firms know this, and this emboldens their lawyers to send out all kinds of semi-bogus cease and desist letters. (The lawyers like this too - it generates billable hours, and they can show their client how many "violations" they are curbing.) The C&Ds usually work, because small businesses usually find it much easier and cheaper to remove the offending material than fight. It's too bad, but that's the nature of the game right now.
The proper use of trademarks in various web contexts is still evolving. In the past, for example, embedding trademarks in meta tags was found to be a violation, even if the page content which also used the trademark was permissible. This makes no sense, since proper meta tags merely reflect the page content. Then there's the whole area of contextual advertising - can Chevrolet buy ads the appear on "Ford" searches? The lawyers are going to be busy for a few years sorting out these issues.
Much appreciated.
That is simply incorrect. You have no control over the use of your mark when it comes to identifying your goods.
This all depends on the context. Would you say a directory listing falls within this category? It can be argued both ways.
If I am referring to your goods, I am completely free to use your trademarked name. In some, though very few, cases I would have to put up some sort of disclaimer that I am not the owner of the trademark, but only if there is a chance of creating confusion in the market.
The whole market confusion thing is the key. If your trademark is being used to identify *your products* and I am referring to those products, then I can use the trademark. If there is a chance that it might be confused with being my product or trademark (not likely in a directory) then I would put up a disclaimer, and I can still use your trademark.
There are rules to follow when using trademarks, but if they are followed, the trademark owner does not have control of how the mark is used.
