Advertising & Marketing
E-Advertising vs Intellectual Property: A Continuous Tug of War turn, the word “VelVeeda” is almost identical to the “Velveeta” trademark of Kraft Foods. The court recognized such usage as the violation of Lanham Act by commencing dilution of the trademark and banned Stuart Helm from using the word “VelVeeda” as the meta tag.
Tatiana KHAREBAVA
Veronika ZBRYZKA
Counsel, Head of IP, IT & Antitrust Practice, Spenser & Kauffmann
Associate of IP, IT & Antitrust Practice, Spenser & Kauffmann
owadays business, regardless of as size, small and large companies, are directly relevant to the Internet. Some of them use the Internet as a platform for advertisement, the others use it as a trading platform to sell their products and services. Every single day the range of tools and possibilities for Internet-promotion of business is becoming more and more expansive. In particular, among popular tools we can name contextual advertising (Google Ad— Words, Yandex.Direct), search promotion (SEO), social media marketing (SMM), meta tags, banner advertisement (pop-up, pop-under), hyperlinks (linking, framing) and others. All the e-promotion tools mentioned above have their functions and purposes. However, not all companies use the above tools in good faith. In particular, they aim “to increase recognition” using the reputation of a well-known company and applying means of individualization and IP objects of other companies, causing harm. Thus, there are many cases of violation of trademarks (hereinafter — TM), artistic, musical, literary rights and rights for geographical indications as well as cases of misuse of commercial and trade names, etc.
lar services as Google AdWords and Yandex. Direct. A new business usually chooses the names of already promoted brands when launching contextual advertisement. Thus, when users search something they see the website of unfair advertisers but not “original” websites of well-known brand owners. Thus, international practice considers application of the trademark of another company as a key word for advertisement of the product as violation of customers’ rights. Such application may mislead the customer and cause him/her to have doubts regarding the real manufacturer of the product (cases Interflora v Marks & Spencer, Bergspechte v Günter Guni). Meanwhile, owners of the platforms may be held liable only if they neither removed nor restricted access to “forbidden” key words after they had identified infringement of the trademark (case Louis Vuitton v Google).
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Where on the Internet can Violated IP Rights be?
Contextual Advertisement Trademark rights are often violated in the contextual advertisement within such popu-
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Meta Tags In addition, for the purposes of quick and cheap business marketing on the Internet, companies resort to the use of TM in the website structure, as meta tags. Thus, where the searched word coincides with the meta tags of the website, such website appears in the search results of the user, thereby increasing its search rating, which implies the profitability of the website as well. Accordingly, the dispute between Kraft Foods Holdings, Inc. v. Stuart Helm, who put the word “VelVeeda” as the meta tag of its website, may serve as an example of such usage. In
Banner Advertisement (pop-up and popunder) It is impossible not to mention banner advertisements (pop-up and popunder), which are well known to the ordinary user as annoying pop-ups and pictures, which often make it hard to “get” to the main content. In the vast majority of cases the infringement of IP rights happens where the TM is used as the keyword for the appearance of banner advertising. There are special services (Gator and Whenu.com) that analyze the search information of user and, accordingly to the requests of the user, show him an advertisement. For example, the user is looking for a Honda minibus but instead of this he gets the banner advertisement of the Dodge company with the same type of vehicle. Nevertheless, the courts are very scrupulous as to this category of cases, particularly in case of nonproving of damages caused to the company or non-proof of the use of the trademark as the search word for the banner advertisement, which misleads the users as to the possible connection between the claimant and its rival, the violation is deemed to be absent (1-800 Contacts Inc. v. WhenU.com). Hyperlinks (linking, hot linking, deep linking and framing) Hyperlinks to other websites with the possibility to borrow one’s content (linking, hot linking, deep linking and framing) are more complicated e-marketing mechanisms of business. In particular, deep linking (outer connection) is used to place a hyperlink on the website, which leads to a page from another website, while bypassing the main (starting) page. A hot linking instrument provides the opportunity to include in the content of the website pictures or other content of one’s website. Framing involves the creation of the so-called window of one website (frame) within which the content of the other website is being shown.
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