The other day I was contacted by an etsy seller who informed me that my keywords were the name of her business, and she asked me to remove the words because it can cause confusion for people searching for her products vs mine (and the other 900 other products from other etsy sellers). Of course her e-mail also came with a kind hint of a “threat.” Legally, this owner had no grounds to stand on because her business isn’t legally trademarked yet. But keep reading, lets pretend that it’s legally trademarked for now.
But, we’ll skip that nonsense and get right down to how keywords can’t be trademarked. Or can they?
The other business name has two words, and one of them is “Printable.” In all my instant download products, I describe them as “printable.” Some of the artwork I did notice that while they described the art, it also was the name she picked for her business. So to please her, I removed the two words that were stuck together while wishing her good luck on her hunt to find others who use the two words put together. I wasn’t aware that her business existed. I can see how having my descriptive phrase (not the words), err…I mean, her business name, in my title tags can be confusing to a consumer. But there was one thing I knew that she could not claim copyright infringement on and that was keywords instead of the phrase (which is the name of her business). Keep reading.
Since her business name includes words that can describe art, I knew that my products will still pull up in search results when users try to search for her business. Since my descriptive keywords are “Printable Art” or “Her-other-descriptive-word Quote”, search results will show all results that use one word out of a keyword phrase to maximize search results. Let me explain this further, I’ll just say her store is called “Printable Feathers” and I have a product that are feathers that can be printed. So I use the keywords “Printable Art,” Feathers,” and “Feather Art.” When users type in “Printable Feathers,” it will pull up the products that have the keywords “Printable” and “Feathers” that are listed in keywords and title tags. The search results will not show her store unless she also uses the same keywords to describe her products.
So if she wants to pull up first in search results, she’s going to have to use the name of her store as one of her first keywords listed in her title tags. If she doesn’t use her store name in her keywords or title tags then I will rank first because I’m targeting users who are searching for Printable Art, Feathers and Feathered Art.
And that was her whole point of contacting me.
This other store owner claimed that using her business name (or my keywords used to describe my product) could confuse others with my store and her store and thus I was infringing on her copyright. If you search for it, there’s been legal cases just for this reason that haven’t won in court because there is no ground that consumers can be confused with words that describe a product with words that are used as a business name. Either users ARE searching for a product or they ARE searching for the business name. And if you don’t execute your SEO correctly then nobody will find your business.
Think about it, does Facebook spend hours googling on the internet trying to find anyone that uses the word “face” and “book in the same descriptive paragraph as keywords? No. Have they sued over the word “Book?” before, yes. Only because the business name used the trademarked word. They haven’t sued for anyone describing a “book” on amazon.com, for example. They would really have to sue the tails off amazon.com for using the keyword “book” in amazon.com’s SEO. But Facebook is smarter than that and knows it has no legal ground to sue someone who is using a trademarked word as a description instead of a brand.
But there’s been plenty of lawsuits between companies suing over keywords infringing on trademarked names and a whole bunch of them never won their case. It’s been proven that consumer confusion can’t happen when someone is typing in a word like “printable” into google. i mean, we live in 2014, it’s not 2005 any more where smart phones didn’t exist.
To add more proof to what I’m saying, Forbes.com wrote an article advising business owners NOT to sue over keywords because it never, hardly ever, wins in their favor. They referenced how Google now allows keywords to use trademarked words in their AdWords advertising program. That’s like basically giving a big swift kick in the balls to all businesses who are thinking about pursuing copyright infringement for keywords use. You think Google would allow it’s company to generate revenue based off of trademarked names (used as keywords) if they knew it was illegal and had no chance of winning in a lawsuit if they were sued? Meaning, Google would NOT be allowing trademarked words to be used in their AdWords program if they wanted to avoid a lawsuit and knew they wouldn’t win. My point, Google wins. And they have won in the past over this actually.
Here’s another case of Google winning. Home Decor Center sued google for copyright keyword infringement, and a judged ruled that “Home Decor Center” (brand name) was too generic and is ineligible for trademark protection.
Here’s my Take-Away and Advice to Everyone
1) Branding. If you want your business name to stand out from the rest, pick a name where people are less likely to use it to describe a product or to use it in one sentence. Like “Legal Zoom,” “Facebook,” “Wal-Mart,” “Little Caesars,” “Young House Love,” Wikipedia.” You need to be really unique or else you will be fighting a whole world of e-commerce and consumer products to try to stand out from the crowd.
2) Keywords and SEO. You can be courteous and remove the actual trademarked name from your title tags and rename your product so it doesn’t reflect the trademarked name. But don’t rewrite your keywords to remove the word “House,” “Little,” “Book,” or “Legal.” In my case since the words are descriptive, I can separate the words into new phrases but it will still pull up her business name since search results look at each word, not each descriptive phrase. Don’t get me wrong, search phrases will almost always come up first but if you’re not putting your search phrase (or this case her business name) in your title tags or keywords then you will not be found.
To summarize, it’s best to stay away from adjectives when you’re branding your business. If you want someone to find your business called “Printable Feathers,” it’s best that you don’t name your business after feathers that can be printed. That’s just bad branding, in my opinion, especially if you’re trying to use your business name to target your customers in search results.
3) Looking for Trouble. Don’t go hunting to try to get everyone to stop using keywords that describe your business name. Legally, you won’t win and you wasted a lot of time and effort for nothing. Annd… you’ll also risk a potential counter-lawsuit to pay all the lawyers fees.
4) Be legal before you threat legal. To not look like an ass, you should also be legally trademarked before you try to accuse anyone of copyright infringement. It’s best to wait until your legally trademarked before you start threatening to report people or to file any lawsuits. I’m just saying this because people will be more kind and considerate if you are legal vs. someone who claims they’re legally trademarked but they aren’t. If people are smart and know about SEO, keywords, title tags, Copyright and Trademarks, they’ll do their homework before they respond to you with an actions. They’ll look up your trademark in TESS and search for either a pending or approved trademarked application.
And if they don’t find one, well, aren’t you the fool. Immediately your case will be thrown out in the court of law in 2 seconds.
Besides that, why harass other people to change their business practices when you have no legal grounding to claim trademark over words? Now I agree that if someone had a similar product and started using “Fall For Design” as a title tag and a keyword tag to be directly trying to target my customers for printable art or more. You can’t describe a product as “Fall For Design.” It literally makes no sense unless I created something and called it “Fall For Design” and got it patented. I can definitely see how that would be Trademark Infringement if someone uses “Fall For Design” in their keyword and title tags. And I did comply and remove the “phrase” out of my keywords and title tags for the other seller. What I did was I re-wrote my title and keyword tags so I wasn’t using her “phrase” but instead of I was describing the product (which is what I was doing originally but it ended up being the name of her business).
But for those that use “Custom Design” or “Fall Invitation” as their keywords to target custom fall themed stationery, I would have no grounds to complain that your company is infringing on my trademark (lets get real, it’s not). I realize that you’re not purposely trying to target my business or my customers and that you’re describing your product.
5) Ask for Copyright Proof for verification. If you can’t find their trademark in TESS, you can respond to the other seller and ask kindly that you did your homework and you couldn’t find any proof. You can say “I’ll be more than happy to remove the phrase if you can please provide me a link to your trademark?” Just fair warning, they may send a not-so-nice response back. Mostly because they are in panick mode that they got caught and they aren’t legally trademarked and don’t have the right to be contacting you.
So legally, I can still use “Printable Feathers” as a keyword. But I found no harm in complying to her request to remove the phrase, I didn’t think it would harm my business and I could still use the words in another way in my title and keyword tags. In matter of fact, it made me think more clearly about the keywords I was using to describe my products and realized that they weren’t very descriptive in what I was selling. Needless to say, those keywords have been tossed.
If I didn’t toss my keywords, I still can use phrases such as “Printable Art” and “Feathers” to describe my product since all the lawsuits claiming ownership over trademarked keywords haven’t won. Plus, if my product is indeed printable feathers art prints then I can use those keywords. Now if someone created a patent over these specific Printable Feathers, and I’m selling the exact same design of Printable Feathers, then I infringe on patent laws and trademark laws.
6) Your lawsuit won’t win. It’s been proven in the past that companies lose millions for suing for copyright infringement of keywords. You’ll be battling a long, expensive lost revenue for every keyword. If you picked a brand name that is truly unique and helps you stand out from the crowd, then you won’t have to worry about searching for everyone that uses a word like “Printable.” They will be able to find you.
7) Learn SEO instead of bullying your competition. If you want to be found in search results for your business, then you will have to use your business name in your keywords, description and Title Tags. Your business name will have to be listed in the very begining of your title tags to be indexed much faster. But threatening or requesting others to remove words from 900 other Etsy sellers products just so you don’t have to compete with them in search engines is not the right way of conducting a business, or trying to target your users that search for your business name. Here’s a hint. If you use “Printable Feathers” in your title, description and keyword tags and I only use “Printable Art,” “Feathers,” “Feather Art,” then you will more than likely rank before me in search results.
If you haven’t understood that hint, here’s another BIGGER HINT for you. You will be found first and not me.
To add more fuel to the fire, here’s a case where a company used “words” that were a part of a trademark in keyword advertisements. They weren’t trying to target a company to steal customers (who does?), they were just merely using words. The results? The company that was being sued for trademark infringement won the case. The company that was claiming trademark infringement lost.
And The Final Answer, Is It Legal to claim Copyright over Keywords?
Is it legal to claim trademark over keywords? You can trademark a business name, which technically can be a phrase, but when it comes to search engines using words to describe products, you won’t have a winning chance to claim copyright/trademark to a word that is used as an adjective. The answer is no.
– The other business owner says they’re going through the paperwork of getting their business name trademarked. She also said some other things that made me know that she was telling the truth and she is trying to get her name trademarked. It sounded like it really is in the “paperwork” stage since her business is no where to be found in Tess.
– No one can own a word that is used for keyword searches (here). Eric Goldman is a Professor of Law and teaches law at Santa Clara University of Law. He closely follows these Trademark lawsuit cases over keyword searches and advises that filing a lawsuit will be fruitless and a waist of money. You can follow him on his blog to see how each trademark lawsuit plays out. However, if you use the word “Apple” for trying to sell a windows computer, then you are infringing upon trademark laws because the fruit “apple” and the brand name “apple” has absolutely nothing to do with a windows computer. You’re purposely trying to steal Apple customers away.
Update: Etsy’s legal team referred me to read some articles written by Sarah Feingold, Etsy’s Intellectual Property Attorney. One of her articles referenced a handylink that describes trademarks and why they wouldn’t be trademarked. Under the category “General Mark,” it says, “no manufacturer or service provider should be given exclusive right to use words that generically identify a product.” To me, “printable” describes a product that can be printed and therefore not eligible for being trademark.
However, Descriptive Marks can use descriptive words as long as it has a secondary meaning. So in the case of “Printable Feathers,” it can be trademarked if:
- Through long term use, or
- large amounts of advertising and publicity.
- The acquisition of secondary meaning is often proven through the use of consumer surveys, that show that consumers recognize the mark as a brand, such as “FORD”, as opposed to a descriptive term, such as “reliable”.
In Summary, it’s best to avoid descriptive names as your business name because you’ll have to prove that your brand name is recognized by consumers. And if it isn’t, well, you’re out of luck. This makes much more sense why that other Etsy seller was contacting me asking me to remove my descriptive keywords is because if she was trying to perform a consumer survey to show that people search for her brand, then she’ll be able to get her name trademarked. But if consumers generally search for the descriptive words and not her brand, then she won’t be trademarked.A little disclaimer. I’m not a lawyer, I’m a graphic designer who’s done my research.