Copyright & Trademarks: What SEMs Should Know

Aug 21, 2007 - 2:33 pm 0 by

Moderator: Jeffrey K. Rohrs, VP, Agency & Search Marketing, ExactTarget

Clarke Douglas Walton, Attorney-at-Law, Walton Law Firm is up first to talk about the DMCA take down notice.

The DMCA is the digital millennium copyright act, which is an amendment to copyright law in 1998 and section twelve is important.

A DMCA involves the copyright owner, the ISP and the user (infringer).

The copyright owner finds a copyright issue, and files a take down notice with the ISP, the infringer has a chance to respond to the notice.

Copyright owners like this because it is easy, fast and cheap. Online service providers like it because there is immunity.

Minimum Requirements: - ID the copyrighted work - ID infringing material - Copyright owner or agents contact information - Statement a good faith belief of infringement - Statement that filer is authorized - And a signature

Where can you file a DMCA? - Online Service Providers -- Host -- Search Engines --- Organic --- Paid Search --- AdSense -- Any user generated site --- YouTube --- Discussion forums -- List of online service providers at

What can I complain about? - Copyright is original work of authorship in a tangle form

He then showed examples of DMCA take downs.

DMCA Drawbacks - US Geographic limitations - Wont help with other legal problems such as trademarks, domain name and defamation - No real penalty to infringer

DMCA Tips: - Be sure you own the copyright - Be sure it is an infringement - Be sure all six elements are included - Make it easy on the service provider

Eve Chaurand-Fraser, Online Compliance Officer, IAC Search & Media to talk about the ISP side.

They prefer to let the two parties deal with it, but it doesn't always work like that. has a copyright policy, which includes the DMCA part.

What Not To Do: - Don't be vague - Don't be argumentative - Don't be threatening

She shows examples of screen shots that should make it easier for them to prove copyright issues.

The site has a form you can use to make it easier.

What about Trademark issues? - They can use the trademark as a keyword to display the ad - They can use the trademark in their ad copy tolerates the use of trademarks as keywords but not in the ad copy. gets about ten of these DMCA requests per week. And only about 1/3rd are copyright issues, and maybe about 1/3rd are trademark issues and the rest are not legal issues.

Mary Berk, Director, adCenter Marketplace Quality, Microsoft Corp. is next up to talk about trademark policy, but she is not a lawyer (disclaimer).

Microsoft is now updating their trademark enforcement practices but their policies have not changed.

In the past, an affiliate to bid on a trademark required a lot of work, today it is easier. Once a trademark owner submits a claim, they will start watching your trademark term but it doesn't mean they will get it right. They will do their best.

Advertisers cannot bid or use a trademark term in their ad copy.

Why are they changing? - It is difficult to manage all agreements between affiliates and trademark holders and advertisers - It is frustrating to legitimate advertisers to go through a verification process - They want to keep relevance for the end user - It's good for everyone to have common practices, and these are inline with common practices

Benefits: - Advertisers will have faster approval process - Rules are clear cut - Add relevance for end user

Challenge: - Trying to identify the direct competitors in countless industries

What to expect with new changes? - Late August to early September , adCenter reps will speak with trademark owners - Sept 10th they will implement this policy

Reporting Trademark concerns: - URL is long and hard to type (sorry)

Submitting a TM concern form can be done via snail mail, email or web form. - Web Form asks for name, contact info, basic information and what trademark is at issue

Then Microsoft will review your claim and take action

But Microsoft needs your help with this.

Deborah A. Wilcox, Partner, Baker Hostetler is next up to let SEMs know what they need to know about on this topic.

She starts off by explaining that technology is much faster than the courts.

When you can't get action on your problem, it is time to bring in outside cancel.

Gathering Evidence: - Identify the real parties involved including competitors, search engines and other distributors. - Make sure your IP rights are in order. IF you own your trademark, copyrights and domain names. Register them at and - Take screen shots - Determine the hard that is being caused to the business, be specific

Types of Legal Action: - C&D letter (cease and desist) is longer but effective - UDRP actions - Lawsuit

Emergency Relief - Ask for temporary restraining order - Preliminary injunction within a couple of months

What to Seek through Litigation - Profit details - Details on scope and extend of problem - Promise is cease infringing - Corrective advertising - Recall - Judgement "on the books" - Monetary recovery -- Attorney fees -- Infringers profits -- Damages -- Statutory damages if infringement of register copyright, cyberquatting or counterfeiting of registered trademark (it is much easier if your registered)

Eric Goldman, Assistant Professor of Law, Director, High Tech Law Institute, Santa Clara University School of Law (someone I site often).

He said he finds it interesting how "pro plaintiff" the session is. So he will take the counter approach.

Every company is both a consumer and producer of copyright and trademarks.

(1) Don't be duplicitous.. Don't feel you can enforce your rights if you engage in the same practices. Such as if you are using robots to gather third party content from web sites, then it is not right to complain if someone is doing it to you. He has a client like this. So he is adding a robots exclusion to not be duplicitous, plus offer an API to give people a way to get their content. Another example is if you don't like other companies buying your trademark in search ads, then don't buy trademarks for your search ads yourself. This happens all the time, he said.

(2) Invest your dollars in IP protection and enforcement wisely. What this means is... If you see someone is infringing on your IP, just don't freak out. He doesn't mind when a splog steals his content, it is not worth his time to go after them (agreed). Invest your money in more marketing instead. He explains that some of these lawsuits can cost you big time. He gave some funny examples.

If you want cash, you need to register. Be careful with the creative commons license.


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