SEO Breaching Copyright - Using Words in a Business Name?

[Mad R]

I find this interesting because in SEO we look for keywords that are going to boost organic search results.

An issue has come up where my client has been asked to not use two descriptive words which I've been using in my SEO for them. I use various keyword tools to get the best results. These words have increased their organic search results greatly; the SEO is working otherwise we wouldn't get a complaint, I expect. We rank second to the complainant.

I have not used those key phrases maliciously or intentionally to harm, however, these words (plus others) perfectly describe what my client offers. Two of those words are in the other company's business name and domain name. Also I didn't use the words exactly as the business name reads - there were other words inbetween, or they were swapped around, specifically so that it wouldn't appear exactly the same.

This is related to the travel industry and those words are used frequently within leisure travel. The key phrases are used in their descriptions on their Facebook page and other Social Media, throughout their website content and meta tags, in our adwords campaigns and collateral materials.

I don't want to make those words public here if possible, but would appreciate your thoughts and any questions as to
1) what rights my client has to be able to use any words he likes in SEO campaigns, and
2) as the SEO consultant, if this gets nasty, who would be in the firing line if the other company wishes to take further action, say for copyright infringement?

Thank you!

 

[Sarah J]

Hi Mad R,

I believe that you are able to use them but hopefully someone on here with more experience in IP can further assist.

Question: does that company (asking you/your client to desist) have the words/phrases trademarked? On what grounds is that company asking you/your client to desist?

 

[Mad R]

Hi Sarah,
Thanks for your response.

No, they don't have the name trademarked that I can see (no (R) or (TM) ). They believe we are "using business/trading name prominently and therefore deceptive to visitors and customers." Must say that both these companies are well respected and ethical in every aspect, and know each other in friendly terms.... and I don't want to do the wrong thing by either of them, but my client comes first!
And I guess that then opens a new question; if they now trademark their name, will that prevent not only us, but anyone else in the travel industry not to use these two generic words?

 

[Sarah J]

Hi Mad R,

The purpose of trademarking a term or phrase is to prevent others in the same industry from using that trademarked term or phrase, depending on the conditions attached to the trademark. Certain terms or phrases (e.g. commonly used phrases or colloquial phrases) cannot be trademarked and will be rejected by the trademark office.

It would appear that the company has no grounds to restrict you usage of such terms or phrases. First, they have not trademarked them. Second, if they are commonly use, particularly in the tourism industry, they cannot trademark them. Third, using it as an SEO where the public does not actually see the terms or phrases associated with the brand of your client cannot constitute a copyright infringement and may not even constitute a trademark infringement where the terms or phrases are trademarked.

I would double check this with the with an IP lawyer or perhaps give IP Australia a call and see if they are able to advise you on this matter. However, I do believe that the company (or companies) are merely trying to intimidate you.

 

[Sarah J]

This is an interesting question so do let us know what you find out!

 

[Mad R]

Thanks again Sarah... I'll give IP AU a call and leave a reply here.
Just to clarify this sentence " ...using it as an SEO where the public does not actually see the terms or phrases associated with the brand of your client..." In fact, with SEO you use those keywords/phrases within content on the page or as a title (H1heading), so they are seen.

 

[DennisD]

I recall seeing a few cases in this space in recent years, including where companies got into trouble for using a competitor's trademark/trading name in the headline of its sponsored link, for example in your industry (travel, tourism), STA had a headline which included 'Harvey World Travel', its competitor, but linked to the STA website. The central thing is not whether you have malicious intentions. What is central is that advertisers need to make sure their headline link is not misleading to consumers, which can occur if using a competitor's name. So you do need to be a bit careful.

 

[Mad R]

I recall seeing a few cases in this space in recent years, including where companies got into trouble for using a competitor's trademark/trading name in the headline of its sponsored link, for example in your industry (travel, tourism), STA had a headline which included 'Harvey World Travel', its competitor, but linked to the STA website. The central thing is not whether you have malicious intentions. What is central is that advertisers need to make sure their headline link is not misleading to consumers, which can occur if using a competitor's name. So you do need to be a bit careful.

@Sarah J and @Hugh Thanks for your responses, much appreciated. It wasn't with malicious intent - that's for sure. When we do keyword research we look at various factors - key phrases people are searching; long tail keywords; and high, low and medium keywords in the niche market - to get results.
I couldn't get through to IP Aus. However, we did find out that 1) as Hugh has mentioned above, don't use a competitors trading name in Adwords campaigns, which we didn't; 2) the words we used in both Adwords and SEO were allowed because they were generic travel terms. E.g. using 'Harvey World Travel' as an example, 'World Travel' doesn't infringe on copyright. Although the travel industry is large - it's also quite small as far as the network goes. We didn't want this to blow out of context, so decided to change the FB description and Meta Title on the web page by separating those two words that caused the concern, which hasn't affected SEO results. I will continue using the key phrase in my SEO campaigns, albeit, carefully!

 

[Sarah J]

Thanks for getting back to us, Mad R, and updating us on your progress/outcome. I'm sure your experience will be useful for future forum browsers in similar positions.

Best of luck with the business!

 

[DennisD]

Yeah as Sarah J says, thanks for getting back to us. Well done sorting out a solution that is commercially acceptable for you and your competitors, and keeps your relationships in good shape