As the internet has become ingrained into our daily lives, businesses are becoming increasingly sophisticated in manipulating how consumer and business traffic is directed to their websites. Businesses strategically embed words or phrases in the primary text of their website pages, or in their website “metatags,” which are visible to search engines but not to the average internet user. Or more commonly today, businesses buy keywords from search engines such as Google® or Yahoo®. When a business buys a keyword from a search engine and a user searches for that term, the search engine prominently lists the business’ website as a prominent link.
So what happens when a company purposely uses a competitor’s trademarks in its website metatags or buys a competitor’s trademark as a search engine keyword in order to lure potential customers searching for those trademarked terms? Search engines allow it, and this is fairly common practice today, although in some cases, this practice can amount to trademark infringement.
The courts are not uniform as to what constitutes trademark infringement in this context. Some courts have held that using a competitor’s trademarks to direct traffic to a website constitutes trademark infringement only if the consumer is ultimately confused as to the source or ownership of a website. When consumers click on an ad triggered by a keyword consisting of a competitor’s trademark and then arrive at the advertiser’s website, most consumers will realize that they are not visiting the website of the trademark owner. Thus, some courts have held, there is no consumer confusion, and therefore no trademark infringement.
Other courts, however, apply a doctrine known as “initial interest confusion.” Whether or not the online user is confused as to the website’s owner, the fact that she only became interested in a company’s product because the company lured her to its website by using its competitor’s trademark can constitute trademark infringement.
Businesses should consult with trademark counsel to take defensive steps to ensure that their trademarks are not being improperly used to direct internet traffic to their competitors.
Jeremy Walker is a director in the Litigation Department of the McLane Law Firm. He can be reached at 603-628-1431 or at [email protected]. The McLane Law Firm is one of New England’s premier full-service law firms with offices in Manchester, Concord and Portsmouth, New Hampshire, as well as Woburn, Massachusetts.