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Well, we
have been receiving many queries regarding ethical and legal SEO.
Many of our clients have been asking what legal SEO is? And what all
legal recourses are available to them in case someone is misusing
their intellectual property while utilizing SEO service for them.
We have discussed this issue at length with our legal advisor and on
the basis of our discussion here is some useful information for all
the stakeholders of internet marketing in India or abroad. Please
note that this is not a piece of legal advice. This is just for the
sake of information in public interest.
What is Legal SEO?
Legal SEO is sometime also referred as white hat SEO. It basically
means using only those SEO techniques which do not infringe upon the
legal right of any person. Remember in legal terminology even a
company, trust, LLP or LLC are having juristic personality and they
do have several rights and remedies available in their hand. A
company can sue you if you violate their IP (Intellectual property)
right while using SEO for your website. Therefore, it is advisable
to use only Google approved SEO tools.
What legal issues can arise in SEO?
Well, there could be several legal issues in which you might find
yourself involved like, trademark issue, Copyright issue, Patent
issue, design issue. For illustration if you use trademark of your
competitor in your meta tag then you may be held liable for
trademark violation.
Trademark violation in SEO
Normally, it has been seen that in some website owner use the
trademark of their competitor as their meta tag and title tag to
attract more visitors on their website. Use of competitor’s
trademark for text linking is also a common practice which is an
illegal practice. If you use trademark of your competitors for any
commercial gain like attracting more visitor on your site or
redirecting customers on your website then you might face legal suit
for trademark violation.
In the case of Brookfield Communications v. West Coast Entm't Corp,
174 F.3d 1036, 1062 (9th Cir. 1999), US court decided that the use
of word “moviebuff” which was registered trademark of Brookfield in
domain name www.moviebuff.com by the respondent amounted to initial
interest confusion and thereby liable for trademark infringement.
Legal issue in keyword advertisement
There could be multiple IP violation like trademark infringement,
copyright infringement, design infringement, in keyword related
advertisement like Google Ads. Google is currently running it
adWords campaign which allows its users to place advertisement even
by using trademark. So the next question would be what are the
criteria to determine IP violation especially in trademark?
Presently courts are following the universal likelihood of confusion
test. This basically means if the consumers are likely to get
confused about the source of products or service then it would be a
fit case of infringement. Let us consider the status of Google
adWords.
Google adWords are normally placed on the right hand side of search
result under the heading sponsored listing and moreover the users of
search engine are deemed to be tech savvy. Therefore, the mentioning
of word sponsored listing reduces the likelihood of confusion. This
is just another factor while determining the liability.
Liability in keyword related advertisement also depends upon the
municipal laws of each nations like if the trademark is not
registered under the municipal laws then you cannot maintain a suit
for infringement. However, you would still be able to maintain
passing off action under common laws.
Indian Position
Indian courts have not faced frequent cases of trademark
infringement related to keyword linked advertisement. However,
according to Trademark Act, 1999 the owner of trademark can protect
his registered mark in case it is violated by anyone. Moreover,
Indian courts are also following the common law doctrine of
likelihood of confusion to determine the liability in passing off
action for unregistered mark.
Indian courts have also affirmed the decision of US court in Playboy
Inc. v. Netscape. To read more on this issue keep visiting Indian
SEO.
Note: This article is posted with prior permission from
www.lexcop.com
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Article by Aseem Kumar
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