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The Kessler Report
The Kessler Report
A Publication of Michael G. Kessler & Associates, Ltd.
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Fraudbusters® Edition
Volume 7

Question Mark Logo Number 1

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Trademark Infringement in the Online Marketplace

By Thomas Coogan, Supervisor of Electronic Research

The World Wide Web has proven itself to be one of the premiere marketing grounds for businesses worldwide. The ease and simplicity of setting up a professional website combined with its low cost has allowed many businesses to reach markets that traditional marketing plans could not address. With this dramatically increased exposure, the need for protecting your intellectual property also rises. After all, reaching new markets also exposes your ideas to competitors. The Internet marketplace is filled with shady, unprofessional competitors that seek to profit on the reputation of your good name and intellectual property.

Meta Tags and Trademark Infringement

Since the introduction of the Internet as a marketing tool, the most common form of online trademark and copyright infringement has involved the use of
competitor's intellectual property in the body copy of their website. Such infringements can be found through extensive web searching. However, of more concern are the technical tricks employed to commit such acts. META tags were the earliest such tricks. What started as a simple way for search engines to rank websites quickly became a means for infringers to stuff the keyword and description tags with the well-known trademarks and company names of their competitors. This form of infringement often went unnoticed since many of the infringements were not actually visible in the copy of the web page. The only way to find the infringements was by looking at the source code of the page itself. Many lawsuits, most notably the ones filed by Playboy in the late 1990's, have been fought in response to use of trademarks in META tags.

Introducing the Pay-Per-Click Keyword-Bidding Model

Luckily, intelligent search engines were aware of the
META tag abuse and have stopped factoring them into their ranking algorithms. Even the engines that do read META tags give them such little weight that they could never affect a site's ranking on their own. However, as trend setting Internet technologies become available to the public, infringers find new ways of profiting from the use of competitors' trademarks. The Pay-Per-Click (PPC) keyword-bidding model is one such technology that is of concern to the IP community. By using such services, businesses can effectively bid for their position in search engine results for particular keywords and phrases. Like META tags, PPC is abused by companies that bid on the trademarks and company names of their competitors. Although most PPC companies employ rigorous editorial guidelines, trademark infringement still manages to persist through their service. Groundbreaking lawsuits filed by Mark Nutritionals and Kessler International will continue to set the stage for prosecution of such unprofessional use of the PPC model.

Confusion Through Cloaking

There are still other means by which intellectual property infringements take place on the Internet. Cloaking has become a mainstream business practice, especially for e-commerce companies. The cloaking process involves the development of two separate Internet sites. One is keyword rich and it is delivered to search engine spiders when they crawl the Internet. The purpose of this site is to obtain high rankings in the search engines without having to sacrifice aesthetic appeal to consumers. The second site is what the users actual see when they come to the site. What essentially happens is that when the web server receives a request for a web page, the IP address of the user is looked up in a table. If the IP address matches an address of one of the search engines, the content rich site is returned. Otherwise, their consumer site

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