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?

 

 

Reuters reports that Google will stop using GMAIL and will instead use GOOGLEMAIL in the UK, as a result of a trademark protest from an owner of prior rights in the term.

I will subtly point out here that our firm performs trademark clearance searches and provides availability opinions for the U.S. and abroad, working with a network of international attorneys.

MacDailyNews.com and other Apple rumor blogs report that Apple filed on October 7 for the name VINGLE.  Why do I post that?  Because it illustrates the growing trend of ‘registry-watchers.’

On a related topic, The Privacy and Security Law Blog of the Davis Wright Tremaine firm has recently posted ‘Inadvertent Disclosure of Business Secrets Through Intellectual Property Filings.”

“In this Circuit, we have today adopted a test for nominative fair use in which a court will pose three questions: (1) Is the use of the plaintiff’s mark necessary to describe both plaintiff’s product or service and defendaant’s product or service? (2) Is only so much of the plaintiff’s mark used as is necessary to describe plaintiff’s products or services? (3) Does the defendant’s conduct or language reflect the true and accurate relationship between plaitniff’s and defendant’s products or services?  If each of these questions can be answered in the affirmative, the use will be considered a fair one, regardless of whether likelihood of confusion exists.”

From Century 21 Real Estate v. Lendingtee, Inc., No. 03-4700 (3d Circuit Oct. 11, 2005).