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SES – Copyright and Trademarks

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Search marketers will almost certainly run into copyright or trademark issues at some point in their careers. This session covers law fundamentals you should know, as well as common tips and tactics you may need to use relating to how these issues apply to free and paid listings.

Moderator:

  • Jeffrey K. Rohrs, VP, Agency & Search Marketing, ExactTarget

Speakers:

  • Clarke Douglas Walton, Attorney-at-Law, Walton Law Firm
  • Mary Berk, Director, adCenter Marketplace Quality, Microsoft Corp.
  • Eric Goldman, Assistant Professor of Law, Director, High Tech Law Institute, Santa Clara University School of Law
  • Deborah A. Wilcox, Partner, Baker Hostetler
  • Eve Chaurand-Fraser, Online Compliance Officer, IAC Search & Media

First to begin the session is Clarke Douglas Walton an Attorney-at-Law from Walton Law Firm who gives an overview of the DMCA (Digital millennium copyright act). A DMCA includes:

  • owner of the copyright material
  • the ISP, and
  • the user (infringer).

This DMCA works well as for copyright owners it is easy and inexpensive to file whereas the ISP likes it because it has immunity.

Minimum requirements to file a DMCA:

  • ID of the copyrighted work
  • ID of infringing material
  • information about the copyright owner or agents.
  • Statement a good faith belief of infringement
  • Statement that filer is authorized
  • A signature

Where to file a DMCA?

  • Online Service Providers
  • Host
  • Search Engines
  • Organic
  • Paid Search
  • AdSense
  • Any user generated site
  • YouTube
  • Discussion forums
  • List of online service providers at copyright.gov/onlinesp/list/index.html

What can I complain about?

  • Copyright is original work of authorship in a tangle form

After showing examples of the DMCA take downs he also explained the demerits of this act which are:

  • US Geographic limitations
  • The act does not help in cases of trademarks, domain name and defamation
  • The infringer does not really suffer a real penalty.

DMCA Tips:

  • Be sure you own the copyright
  • Be sure it is an infringement
  • Be sure all six elements are included
  • Make it easy on the service provider

Next up was Eve Chaurand-Fraser from IAC Search & Media to speak on behalf of the ISP.

Eve said that they mostly try to make both parties handle the case but this does not really result in anything. Apparently, Ask.com has a copyright policy, which includes the DMCA part.

What Not To Do:

  • Don’t be vague
  • Don’t be argumentative
  • Don’t threaten

Ask.com even provides a DMCA form.

In the case of Trademark issues:

  • They can be used as a keyword to display the ad
  • It can also be uses in their ad copy.

On an interesting note, Eve informs that Ask.com receives around 10 of these DMCA requests weekly. While 1/3rd are copyright issues, around 1/3rd are trademark issues and the rest are not even legal issues.

Microsoft’s Mary Berkl is here to discuss trademark policy.

Mary says that eve though they have updated their trademark enforcement practices their policies remain unchanged.

Why are the policies changing?

  • Manage all agreements between affiliates and trademark holders and advertisers is difficult.
  • Frustrating to legitimate advertisers to go through a verification process
  • They want to keep relevance for the end user
  • It is good for everyone to have common practices, and these are inline with common practices.

Benefits:

  • Advertisers will have faster approval process
  • Rules are clear cut
  • Add relevance for end user

Challenges:

To classify direct competitors in countless industries

What and when to expect new changes?

  • Late August to early September , adCenter reps will speak with trademark owners
  • Sept 10th they will implement this policy

Submitting a TM concern form can be done via snail mail, email or web form.

  • Web Form asks for name, contact info, basic information and what trademark is at issue

Then Microsoft will review your claim and take action. But Microsoft needs your help with this.

Deborah A. Wilcox, Partner, Baker Hostetler says that technology serves speedy results than going to court.

Gathering Evidence:

  • Identify the real parties involved including competitors, search engines and other distributors.
  • Make sure your IP rights are in order. IF you own your trademark, copyrights and domain names. Register them at uspto.gov and copyright.gov
  • Take screen shots
  • Determine the hard that is being caused to the business, be specific

Types of Legal Action:

  • C&D letter (cease and desist) is longer but effective
  • UDRP actions
  • Lawsuit

Emergency Relief

  • Ask for temporary restraining order
  • Preliminary injunction within a couple of months

What to Seek through Litigation

  • Profit details
  • Details on scope and extend of problem
  • Promise is cease infringing
  • Corrective advertising
  • Recall
  • Judgement "on the books"
  • Monetary recovery
  • Attorney fees
  • Infringers profits
  • Damages
  • Statutory damages if infringement of register copyright, cyberquatting or counterfeiting of registered trademark (it is much easier if you are registered)

Last to discuss is Eric Goldman an assistant Professor of Law & Director of High Tech Law Institute at Santa Clara University School of Law.

Eric begins by saying the panel is "pro plaintiff".

Every company is both a consumer and producer of copyright and trademarks.

(1) Don’t be duplicitous.. Don’t feel you can enforce your rights if you engage in the same practices. Such as if you are using robots to gather third party content from web sites, then it is not right to complain if someone is doing it to you. He has a client like this. So he is adding a robots exclusion to not be duplicitous, plus offer an API to give people a way to get their content. Another example is if you don’t like other companies buying your trademark in search ads, then don’t buy trademarks for your search ads yourself. This happens all the time, he said.

(2) Invest your dollars in IP protection and enforcement wisely. What this means is… If you see someone is infringing on your IP, just don’t freak out. He doesn’t mind when a splog steals his content, it is not worth his time to go after them (agreed). Invest your money in more marketing instead. He explains that some of these lawsuits can cost you big time. He gave some funny examples.

If you want cash, you need to register. Be careful with the creative commons license.

Source: Search Engine Round Table

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About Navneet Kaushal
Nav is the founder and CEO of PageTraffic, a premier search engine company known for its assured SEO service, web design and development, copywriting and full time SEO professionals.

Navneet has wide experience in natural search engine optimization, internet marketing and PPC campaigns. He is a prolific writer and his articles can be found in the "Best Articles" section of many websites and article banks. As a search engine analyst , he has over 9 years of experience and his knowledge is in application here. WebProNews Writer
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