Could Your SEO Practices Get You in Legal Trouble?

One of the more overlooked issues when launching or operating an online business can be hiding in the background. Unauthorized use of another company’s trademark may be buried in code, a site’s digital marketing, or metadata, such as search engine optimization (SEO) tags.

A business owner or CEO may be unaware of the possibility of this problem, especially when it is delegated to contractors. “But the SEO company is an agent of the company that hired them, so you may not know that there’s this infringement in your metadata, but it’s still on you,” warns Gary Sorden, an intellectual property litigator at Cole Schotz in Dallas, Texas.

For example, Sorden says, “I have one case where another company’s pages are coming up higher in a Google search based on my client’s trademarked search terms, like his company name. It can be hard to find the evidence in these cases, but you have to wonder: How is that possible?”

Potential Liabilities in SEO Tactics

Search engine optimization (SEO) is a detailed and increasingly elusive process. The idea is that we’re all trained to look for what we want by typing search terms into a search engine, such as Google, and the first page of results will most likely dictate where a searcher clicks from there.

“It’s all about getting that first page,” says Sorden, and the difference in where you land in search engine ranking can make or break a business.

How ranking factors are determined is part of the murky mystery of search engine algorithms, but SEO strategy companies often plug coding language and tags into your web page’s underlying metadata to match search terms used by people looking for what you’re selling in hopes of increasing the website’s ranking. 

“Let’s say you’re selling a soft drink, and what if you use a tag like Coke or Pepsi? Obviously, that’s going to shoot you way up there. Those are your competitors, but those search terms will probably bring you more traffic. That’s a pretty good argument for trademark infringement,” Sorden says.

“A lot of my clients spend lots of money on SEO. Maybe the SEO company doesn’t know something is trademarked; maybe they do. But bottom line is that’s not their objective. Their goal is to get you up in the rankings.”

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Legal Analysis Is Split on SEO

While there is some disagreement as to whether metatags are a high-quality SEO technique, and legal analysis can vary based on an adjudicator’s technological sophistication, it remains an open question whether this type of use constitutes IP infringement.

To date, cases are split on their analysis, questioning whether metadata is a “use in commerce” or results in a “likelihood of confusion,” both requirements of the Lanham Act, the federal law governing trademark infringement. Sorden says that the law is in flux, but “seems like something you shouldn’t allow.”

Yet another hurdle to liability for infringement is showing damages resulting from the unauthorized use. Analytics may indicate a decrease in traffic to your site, and/or a corresponding increase in traffic to your competitor’s site. But does this link to a drop in your sales, or to an otherwise unexplained increase in their revenue? It may be hard to say.

Infringement on Social Media Platforms

Alleged infringement on social media, such as an X hashtag, would be difficult to demonstrate, making it unlikely to establish a likelihood of confusion that causes quantifiable harm.

Perhaps the key takeaway in this scenario is that legal uncertainty makes defending a lawsuit costly. It’s usually better to avoid one if possible. In addition, if your internet exposure is global, bear in mind that many other countries have interpretations of trademark law that may deem your practices unlawful.

Find Legal Help

If you have concerns about metadata trademark issues, whether for purposes of your own website optimization or because you think a competitor might be misusing your trademark, talk to an experienced intellectual property litigator.