Each month we are the editor and publisher of the Dozier Internet Law Federal Court Report. Lately we've seen a remarkable increase in Federal lawsuits over the use by someone of a business or product name of a competitor. This is a revealing development. But while the lawsuits are new, the rampant use of competitor names is not.
For years, online businesses and affiliate marketers and the like have known that visitor traffic is the key to success. And if you can have your site return high in the natural or organic search results, then traffic, sales, commissions and profits will follow. And in order to do that, Search Engine Optimization (SEO) techniques are used. It didn't take long to figure out that if your business could present a result when a competitor was searched, that would be great for generating highly qualified traffic. So the less scrupulous online industry started figuring out ways to use competitor's names so that Product X would be presented when Product Y was searched. And that's what the lawsuits are about.
This will be the first in a series of exposes surrounding the surreptitious and illegal use of competitor's names. For businesses out there that are potential victims, pay careful attention to the guidance Dozier Internet Law will offer up so you can see if a competitor is ripping you off. For marketers, publishers, and those looking for more effective ways to drive traffic, please ignore our commentary (of course we strongly discourage using the information we provide as a training manual but putting this information out there is the only way to educate the online business world about the rampant illegalities existing today). And for you "Fair Use" and "Free Speech" lawyers who follow every comment we publish and constantly attack our positions, either you do not understand the business of the web and SEO enough, or you do and just elect to openly encourage these tactics. I suspect ignorance is the most likely culprit, but one must wonder whether your fundamental abhorrence to the protection of property rights of businesses is your motivation. Today, the Dozier Internet Law expose begins with a short list that we'll explore as we move along.
1) Product Reviews: Traditionally protected by "fair use ", many product review sites are surreptitiously owned by a competitor or a marketer. For some reason your business is always getting negative reviews and the competing products are always getting positive reviews!
2) Comparative Advertising: A competitor is openly comparing your product on its website. If the information is false, it is easy to deal with. If it is true, it still can be illegal since the site may have published trivial and irrelevant information and optimized your business or product's name inordinately for SEO purposes.
3) $ucks Sites: Many "sucks sites" are commercially motivated. Can you imagine Sears launching a "sucks site" of comments from Walmart's disgruntled customers and, after it gets indexed high when someone is searching for Walmart, running their own advertising on it? Groups like Public Citizen and Electronic Frontier Foundation and the ACLU think this practice is just fine and dandy. Of course it is illegal.
4) First Sale Doctrine: A competitor of yours goes out, buys one of your products, advertises your products on its site, and then captures prospects searching for you. Funny thing, though. As much as you have tried to figure it out, you have no idea who his source is for your products. That could be a long search. That's because...well, there is no source. They bought one, and don't plan on getting rid of it, so they price your product at an exorbitant level and the customers opt for your competitor's product. Some will argue this is permitted by the "First Sale Doctrine". No, it's not...and on two separate grounds. Not even close.
5) Directories: We caught a Fortune 500 company at this one. Whenever someone searched for a local business by name, the results for the directory listing would come up. Funny thing, though, is that our client did not remember paying for the listing, and he didn't remember ever getting referrals from it. It turned out that when a consumer went to the site, was presented with the details of the company, and requested someone to contact the consumer, the lead was captured and sold to a competitor. There are many ways for directories to use your name legally. This clearly is not one of them.
6) Keyword Stuffing: Or spamdexing. Basically, a competitor uses your name on its site. It could be in the URL, in meta data, behind images in alt tags, in colors your eyes cannot see, or surreptitiously in the html code of the site in such a way that it is indexed by the search engines but never presented as words on the page. Obviously you'll see their site coming up high in search results.
There is one consistency in these situations. When approached about it, the perpetrators always plead ignorance. All of a sudden these skilled search engine optimizers don't even know what "SEO" is, have never heard of a "meta tag", and may have a slight recollection of the existence of a search engine called "Google", but they are not sure (at least according to their lawyers).
At Dozier Internet Law we'll continue to add to the list. Let's expose these practices for what they are!