Mark Cuban (Dallas Maverick owner and founder of blog search engine Ice Rocket) posted “Get Your Blogspot Shit Together Google” yesterday, and the Wall Street Journal ran “‘Splogs’ Roil the Interent, and Some Blame Google,’ today, regarding spam blogs or splogs, created to improve search engine rankings.

Might ‘black hat’ search engine optimization techniques subject a company to 43(a) or state unfair competition exposure, perhaps for false advertising?

Assume that a splogger that has no traffic and no inbound links.  Then it uses SEO techniques that make it the number one hit for the relevant keyword.  Has that splogger used a false or misleading descriptions of fact, or false or misleading representations of facts, in commercial advertising or promotion, that misrepresented the nature, characteristics, qualities of their goods/services?  While an unknown entity is free to advertise itself, does a number one ranking in a search engine represent anything?  Google argued in the Search King case that its rankings constitute commercial speech by Google as to its opinions.  Does the splogger induce the search engine into making misleading commercial speech?