Franchise Update Magazine Issue IV, 2011 | Page 30
Grow Market Lead
Legal
perspective
q&A WITH
ATTORNEY
KEITH KLEIN
By Kerry Pipes
Driving Online Traffic
E
stablishing an online brand
presence demands careful
navigation through practical and legal waters. In the
past, hanging a shingle was an easy first
step in driving customers into a business.
Similarly, launching a website is relatively
easy—but driving traffic to your website
and social media pages involves keeping
up with a rapidly evolving area of law. We
asked franchise attorney Keith Klein to
provide some advice. Klein is a partner
at Bryan Cave LLP and is certified by
the California Board of Legal Specialization as a specialist in franchise and
distribution law.
What are the most common legal
issues involved in driving online
traffic? In addition to social media mar-
keting, search engine marketing (SEM)
and search engine optimization (SEO)
are two significant tools for increasing the
visibility of websites. SEM is an Internet
marketing strategy that includes, among
other things, the purchase of keywords
and contextual advertising to heighten
the visibility of a website in response to
pre-designated search terms. SEO is the
organic process of embedding a website’s
content with words, hyperlinks, and other
mechanisms to ensure that the website
appears higher in search engine results.
Both methodologies may have legal
ramifications, most prominently in the
trademark area. Keyword advertising is
the process by which, when the keyword
is used in a query, the advertiser’s website will appear at the top of the search
results under “Sponsored Links” or a
similar category.
The most common legal issue arises
when one advertiser purchases a competitor’s trademark as a keyword. The current
trend recognizes that use of a trademark
28
Franchiseupdate Iss u e IV, 2 0 1 1
in keyword advertising is sufficient to
establish infringement to the extent that
the resulting search listings would likely
cause confusion among consumers as to
the source of the ad. The law continues
to change, however, requiring marketing departments to remain vigilant in
monitoring legal developments.
Do search engines address trademark infringement with keywords?
Major search engines have established
trademark policies that seek to address
infringement with respect to keyword
purchases. Thus, when a competitor
purchases a trademark as a keyword,
the first step in evaluating legal recourse
options should be consultation with the
particular search engine’s policies. Microsoft adCenter, for example, does not
permit advertisers to bid on keywords
infringing a third party’s trademark unless their use is truthful, lawful, and the
bidder is a reseller of goods distributed
under the mark; the website provides
information about goods or services
represented by the trademark; or the
bidder is using the “ordinary dictionary
use of a term” and the site does not sell
a competing good. Google, conversely,
implemented a less stringent policy,
as it does not “investigate the use of
trademarks as keywords” and will not
disable keywords using the trademark
of another in the United States. It only
investigates ad text that uses another’s
trademark and is “competitive, critical,
or negative.”
Do keyword issues exist that are
particular to franchising? Yes. The
keyword situation is more complex for
franchise systems, particularly with the
increased presence of franchisees on the
Internet. Unlike other companies, franchi-
sors and franchisees must be concerned
about keyword strategies implemented by
each other. While it may appear innocuous to allow the franchisor and multiple
franchisees to purchase keywords for
the brand’s trademark or other, nonproprietary words, the repercussions
are more troubling.
The positioning of sponsored links is
determined through a bidding process.
Advertisers willing to pay more can receive priority in the listing. For companies
with one adverti