| Have you ever got one of those silly emails that offers | | | | Microsoft. Therefore everyone who used IE |
| to let you own a keyword? Silly question. How many | | | | automatically had the plugin.The Legal QuestionEach of |
| such emails do you get every day?A number of such | | | | the companies offering these services has a policy |
| services regularly email me offering keyword | | | | designed to ensure that a web site only buys |
| ownership of premium keywords for $300/year. They | | | | keywords related to their content, and their review |
| say that anyone can type the keyword I bought in the | | | | process is designed to keep cybersquatters from |
| address bar of Internet explorer, instead of typing in a | | | | hijacking popular names and products. Unfortunately, |
| URL, and they will be sent directly to my site. In total it | | | | there is no way to guarantee that any one of these |
| seems that there are about 2% of Internet users | | | | keyword ownership services adheres to any naming |
| worldwide who have enabled one type or another of | | | | standard, or even ensures that any purchaser has the |
| this system, spread out between a few competitive | | | | legal right to any of the terms they are buying. This |
| services.Data shows that between 4% and 7% of | | | | means that the rights to copyrighted material like |
| search queries are performed by entering something in | | | | "Pepsi" or generic words like "business" could end up in |
| the address bar. By default for IE users, these | | | | the hands of the first buyer. While Pepsi is a well |
| searches are automatically routed through to MSN | | | | known brand name, there are millions of copyrighted |
| search. Many of us however have installed so much | | | | and trademark protected terms, covered in multiple |
| software over time, and unknowingly, some of this | | | | jurisdictions. It would not be cost effective or practical |
| software has re-routed these search queries to other | | | | for these services to police copyright and trademark |
| search portals, such as iGetNet, or others. This often | | | | infringement.In the summer of 1999, the U.S. Court of |
| happens if you've installed any file sharing software. | | | | Appeals for the Ninth Circuit, denied Playboy's request |
| We have all heard / read about how many extra | | | | for an injunction barring a search engine from selling |
| 'features' come with programs like Kazaa. This means | | | | advertising based on the terms playboy and playmate. |
| that your default search from the address bar may no | | | | In the precedent setting ruling regarding keyword |
| longer be MSN, and may have been rerouted | | | | advertising, Judge Stotler of the United States District |
| elsewhere, but the basic principle still applies. Of the | | | | Court in Santa, Ana, California, dismissed a lawsuit |
| queries that are actually run from an address bar, at | | | | brought by Playboy Enterprises against the search |
| least half of them are unintentionally instigated by | | | | engine Excite, Inc. and Netscape. The ruling limited the |
| people mistyping the desired URL. This means that | | | | online rights of trademark holders, as it recognized that |
| between 2% and 4% of Internet users actually search | | | | a trademark may be used without authorization by |
| via their address bar.So how exactly do these | | | | search engines in advertising sales practices.Playboy |
| address bars work? There are many of these | | | | claimed that the search engines were displaying paid |
| companies offering this kind of service, with each one | | | | banner ads from pornographic web sites whenever |
| of them selling the very same keywords to different | | | | "playboy" or "playmate" were used as a search term. |
| and sometimes competing companies. To make things | | | | As the owner of the trademarks for both terms, |
| worse, the keywords you might buy will only work with | | | | Playboy argued that the use of its trademarks for a |
| the issuing companys proprietary address bar plug-in. | | | | third party sales scheme was trademark infringement |
| Then, to actually offer search capabilities from the | | | | and branding dilution.In the ruling dismissing Playboy's |
| address bar, each of these service providers needs to | | | | case, the Judge found that Excite had not used the |
| get individual Internet users to download and install their | | | | trademarks "playboy" and "playmate" in an unlawful |
| plug-in, and remember to run searches from the | | | | manner. This was because Excite had not used the |
| address bar.How effective can a marketing strategy | | | | trademarked words to identify Excites own goods or |
| of this nature be when the various tools are not | | | | services and therefore trademark infringement laws |
| interchangeable, there are numerous competitors | | | | did not apply. It was further determined that even if |
| selling the same key words to different companies, | | | | there was trademark usage, there was no |
| and you are targeting only a small fraction of Internet | | | | infringement because there was no evidence that |
| users? If your ad is being displayed because its similar | | | | consumers confused Playboy products with the |
| to the search query, are you paying for irrelevant | | | | services of Excite or Netscape.What about within |
| results? This can happen; If there is not a perfect | | | | Meta Tags?Is it illegal to use trademarked terms in |
| match to a search query, the next closest match may | | | | your meta tags? Sometimes. The problem occurs with |
| be displayed.Competing with these companies is any | | | | how and why you are using the terms. Web sites that |
| search engine that offers its own toolbar. You can | | | | use the tags in a deceptive manner have lost legal |
| download a toolbar from any number of engines, and | | | | battles. However, legitimate reasons to use the terms |
| run searches on any key word or phrase quickly and | | | | have resulted in successful defenses.In a case |
| easily. You then get the search engines selection of | | | | involving Playboy, the firm was able to prove |
| closest matches, from all the web sites they have | | | | trademark infringement, based on use of their |
| indexed. They offer more than just one choice, and | | | | trademark in meta tags, url and content on the web |
| dont cost anythingWho Started This?Started in 1998, | | | | site. The case was filed by the firm against web site |
| Realnames was the first company that tied searching | | | | operators for stuffing their web pages with the words |
| via the address bar to a web browser. At the time, it | | | | Playboyand Playmatehundreds of times. Furthermore, |
| was touted as a value added solution for businesses | | | | the defendants were also using the terms Playboy |
| around the world who were attempting to get their | | | | and Playmate in the site names, URLs, and slogans. In |
| products found quickly, but didn't want customers to | | | | this case the Judge ruled for Playboy, as there was a |
| have to wade through a sea of Web addresses to | | | | clear case of trademark infringement.In the separate |
| reach their destination.In part, it was deemed | | | | case, Playboy vs. Terri Welles, the court refused |
| necessary because so few web site operators were | | | | Playboy's request. The reason was simple. Terri |
| search engine savvy, and fewer still knew anything | | | | Welles was Playboy's 1981 Playmate of the Year. She |
| about search engine optimization and promotion. What | | | | had used the terms "Playmate" and "Playboy" on her |
| the Realnames solution did was allow a web site | | | | web pages and within her meta tags, and the Court |
| operator to buy a keyword, and then when any user | | | | felt she had a legitimate right to use them to |
| of Internet Explorer would type that keyword into the | | | | accurately describe herself, and to ensure that the |
| IE address toolbar, they would get directed to the web | | | | search engines could catalog her web site properly |
| site that owned the keyword.The company hoped to | | | | within their databases. Playboy's appeal was dismissed |
| profit from businesses which wanted to reach Internet | | | | on Feb. 1, 2002.In SummaryIt is clear that if you have a |
| users who would type keywords into their browsers | | | | legitimate reason to use a trademarked word or |
| address bar instead of remembering the url, or going | | | | phrase in your web site you can. You may also rent |
| through a standard search interface.Unfortunately for | | | | their ownership from one of the keyword ownership |
| the company, the service was entirely dependent on | | | | companies. Be careful, though, it is possible that may |
| Microsoft; and when Microsoft stopped supporting the | | | | get sued.Does the technology work? Yes, but only for |
| technology in May 2002, the company was forced to | | | | some of the approximately 3% of Internet users |
| close. The reason it was so totally dependent was | | | | worldwide who have installed any one of a variety of |
| simple; Unlike the new companies on the market today, | | | | competing plugins that enable this type of searching. I |
| Realnames did not depend on an end user | | | | stress a fraction of the 3%, as you would need to buy |
| downloading and installing a plugin, instead it was | | | | the keywords from each individual vendor to ensure |
| essentially integrated into Internet Explorer by | | | | reaching all 2%. |