Trademark Law

Ensuring SEO techniques comply with trademark law

The aim of search engine optimisation is to improve the ranking of a website in free search engine results. Fraudulent methods to manipulate rankings, such as using inappropriate search terms are becoming more popular, but they carry severe legal consequences.

Ensuring SEO techniques comply with trademark law ©-cirquedesprit-Fotolia

Ensuring SEO techniques comply with trademark law ©-cirquedesprit-Fotolia

Illegal SEO techniques

Using unauthorised SEO techniques entitles a competitor to prevent the activity by sending warning letters. This is because a competitor’s brand is often protected by trademark law. The use of a trademark protected brand name, for example, can quickly exceed the legality threshold.

This article sheds some light on which SEO techniques are permitted and which are prohibited. However, for exhaustive advice on SEO law, we are available to help.

On-page optimisation

On-page optimisation describes all those measures which improve a business’ own website. It includes the use of keywords in the title and content of a webpage.

Formatting and technical details, such as the placement of tags, can influence how easily a search engine finds a website. The use of a competitor’s trade name can also improve the ranking of a website.

Consumer confusion

Legal problems can arise where a keyword is identical to the brand name of a competitor. This is because there is a higher likelihood of consumers confusing the business’ website with that of the competitor’s.

If a business uses a competitor’s brand name purely for the purposes of improving its own website, it commits a trademark infringement (German Federal Court of Justice, BGH case ref.: I ZR 51/08). A business may use a competitor’s brand name as a keyword, provided it does not do so simply to improve its own website.

For example, a business may use a competitor’s brand name as a keyword when reporting on a particular brand. This is because there is a contextual connection to the product and a clear reason for mentioning the brand name.

Hidden use of a competitor’s trade names

Not only is it possible on a technical level to use a competitor’s brand name openly on a website, but it can also be “hidden” in the HTML code. This enables search engines to find the website quickly, even though the brand name does not appear anywhere in the content of the website.

The clear case law here clearly states that there is no connection between the content and the use of the competitor’s brand name (BGH case ref.: I ZR 77/04). The brand name is used “like a trademark”. The sole aim of the business in using the competitor’s brand name is to increase its website’s ranking in search engine results and to gain exposure for its own products.

Such hidden use of a competitor’s brand name entitles the competitor to send warning letters requiring the business to cease and desist. Furthermore the business which infringes trademark law may have to pay compensation.

SEO and meta tags

Meta tags are short pieces programming which are placed in the open and closing head tags in the HTML code. They are generally not visible to the average user.

If there is no connection between a brand name and the content of the website, it amounts to an illegal use of the competitor’s brand (BGH case ref.: I ZR 183/03).

What is allowed?

In summary, a business may use a third party’s brand name if the third party’s products are sold on that website or if there is some other contextual connection between the content on the website and the brand name that appears.

Adwords

The legal position concerning the use of a competitor’s trademark name within the framework of Google Adwords is somewhat different.

Adwords is an advertising system through which keywords can be reserved free of charge. Their use automatically displays a website among the highest pages in search results.

In this situation a business is generally permitted to use a competitor’s brand name as a keyword; the difference to

The difference in Adwords to the above mentioned illegal uses of a competitor’s brand name as a keyword is that the advertisement itself purchased.

Both the European Court of Justice and Germany’s Federal Court of Justice have held that it is reasonable to assume that consumers can differentiate between purchased advertising and the free rankings in a search engine’s results.

However, there is a threshold, which if crossed, makes the use of a competitor’s brand name illegal.

ECJ requirements

The ECJ case law requires that the advertisement must noticeably distance itself from the competitor’s brand. A business breaches trademark law if the advertisement gives the impression that there is an economic connection to the competitor.

The threshold is low and a trademark infringement occurs at the point where it is unclear for the consumer whether a connection exists or not (C-558/08; C-91/09; C-323/09).

The courts decide whether the use of a competitor’s brand name breaches trademark law on a case-by-case basis. However a breach is generally automatically assumed where a business offers imitation products. On the other hand, a trademark law infringement can generally be ruled out where a business offers alternative products to the competitor.

A business must also ensure that its advertisement does not vilify or reduce the effectiveness of the competitor’s brand name.

Provided a business complies with these requirements, it may use a competitor’s brand name as a keyword in its Adwords campaign and does not breach trademark law.

Adwords vs meta tags

In Germany, the BGH differentiates between using a competitor’s brand name as a meta tag or within the framework of Adwords.

The court justifies its position by arguing that Adword campaigns do not influence the standard search results in the same way as meta tags.

Through Adwords the relevant search results are displayed in a section entitled “Advertisements”. The internet user is therefore able to differentiate between the different two types of search results. In contrast, meta tags influence standard search results without the knowledge of the internet user.

According to the BGH, an internet user generally knows that under the “advertisement” section, competitor’s products may be shown in addition to the brand name which formed the basis for the search (BGH case ref.: I ZR 183/03).

Conclusion

It is generally legal to use a well-known brand name as a keyword on a website.

A competitor’s brand name can be used as a keyword if the website sells those products or if there is a contextual connection between the information on the website and the use of the brand name.

In the case of purchased advertisements through Adwords, a contextual connection is not necessarily required. However, a business must ensure that its advertisement does not negatively affect the image or the effectiveness of the competitor’s brand. If the advertisement simply displays alternative products to those of the trademark owner, the use of the competitor’s brand name is generally permitted under trademark and competition law.

It is not easy to design an advertisement in such a way that confusion between two brands can be excluded. Therefore, if you have any further questions about SEO law, our expert team is available to advise you.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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  1. tubidy says:

    Hello, very good information . Thanks for this article. I’M always following your website.

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