copyright infringement in search engine results - what to do?

[KirstyM]

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Greetings!

I've just had an e-mail from a client of mine. He tells me that a competitor has set up a page / sitemap type arrangment specifically to rank for their trading name.

The business in question is a travel business so their competitor is ranking for several search term variations including their brand name. For example "brand name" + location or "brand name" + activity. The page in question is a bit of a dodgy redirect going to the competitors home page, so I assume they are using some form of cloaking. The page url format is brandname.competitorsite.com

They are refusing to take the page down. Said client is in a bit of a rage about this one. He doesn't have a trademark on the business name (although I did advise him almost a year ago to do so).

Anyone know the copyright position on this kind of thing? I'd have thought this was "passing off", but I am no expert.

Help?

[sgpratley]

I think it depends a little on what the name is. If it's something like 'direct holidays' i.e. very generic and difficult to trademark, then you're probably stuffed.

If not, I don't think you necessarily have to have a trademark to win a case of passing off, just a company name and a history of trading under that name.

A letter from your solicitor usually does the trick, just don't get someone to try to word it themselves unless they know what they are doing or it'll just end up in the bin.

[KirstyM]

It's not a generic trading name. Certainly nothing that'd come up by chance in the search results!

[hirschnathan]

If they are directing the traffic to your clients site, whats the big worry? If it is commisson then cancel the affilates account.

[KirstyM]

Noo.... as I say in the post above, this is a competitor site trading off their brand name. The traffic is going to their own site.

This is an SEO client. No affiliate programme.

[nim-b]

From the little I know about copyright law (both my parents are lawyers, and my mum used to teach law, so over the years I picked up a bit), it sounds like there would be enough here for a solicitor to work with. As the term isn't generic, and the competitor is actively using their brand-name, they could argue that they are trying to deliberately mislead customers into mistaking the competitors site/listing for theirs (which is the entire basis of 'passing-off').

I'd suggest they do two things:

a) get yourself or another web/seo expert to fully document what's going on, in both technical and non-technical terms. Try to de-cloak any tracking and take lots of screenshots etc.

b) take this information to their solicitor and get them to write a letter, as previously suggested. But they will probably need to do a) first, unless they have a solicitor who understands the internet! Otherwise they might get landed with extra legal fees just for explaining what the problem actually is.

[JulianM]

Hey KirstyM - sorry to hear about this, I know how very very annoying it can be! We often get some competitors bidding on our brand terms on AdWords, none use them in their URL's yet though, hope you haven't just given people a bad idea!

What we do is send them a letter through a solicitor and in the meantime we monitor and record the competitor's activity. Tradmarking the name would certainly help, as well as having solid proof that your company has built a reputation with that name - a long history of PR campaigns, advertising expenditure and businesses usage do help to build up your case. But usually a simple letter from a solicitor does the trick within a few days. Good luck!

[ian-d]

Hi Kirsty, i'd be interested to know how you get on with this, having the need to go through a similar thing at the moment. My situation is that a company have asked myself (and all suppliers) to remove their trademark branding from my site. They used the reasons of 'passing off' and 'confusing the customer'. I've accepted and done as told, but its left a bitter taste in my mouth. I then realised the other day that despite all this, i've noticed that they are infact using my 'company name' and all combinations of as a keyword on their PPC adwords campaign...the cheek! I've in the middle of deciding whether to leave it be, or say something!!!

[KirstyM]

Say something Ian, go on! They're clearly being hypocrites... the least you can do is embarass their marketing manager!!

Let us know how you go, lol.