Dealing with Search Engine Results
a. Defensive measures: Trademarks are also useful in the effort to deal with deceptive advertising in search engine “sponsored links.” Search engines often use broad or expanded matching to bundle related keywords and optimize the appearance of sponsored results for a variety of related searches. As a result, a search for Pepsi may return sponsored ads for Coca Cola, and similarly, a search for legal aid (or a specific legal aid organization) may return ads for for-profit sites.
Case law is unclear about whether search engines are liable for competitive or deceptive keywords in sponsored results, but some courts have held that diverting consumers through keyword searches may result in liability under the doctrine of Initial Interest Confusion (IIC).
In Brookfield Communications, Inc. v. West Coast Entertainment Corp., the Ninth Circuit defined IIC as “the use of another’s trademark in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion.” A recent district court criticized Brookfield’s analysis, agreeing that keyword advertising is a “use in commerce,” but suggesting that use of keyword-triggered ads and metatags cannot confuse consumers if the ultimate search results do not display plaintiff’s trademarks.
In recent years, Yahoo! and Google have responded to controversy about the use of trademarks in ads by establishing trademark complaint procedures. Each promises to remove or modify the advertiser’s listing to resolve the dispute.
b. Affirmative Steps: Search Engine Optimization. If clients know about your website and know how to distinguish it from other sites, these problems can be overcome. By developing techniques that market your website name and logo to your client community, you establish a mental mark with your site that will prevent confusion. Additionally, you can take on optimizing your web site's ability to be appropriately placed when clients search for your site or for legal help. If your website is at the top of the page, a sponsored link, and clearly identified, confusion is mitigated. Read more about Search Engine Optimization strategies.