By Armen Vartian From the Professional Numismatists Guild Newsletter Volume 1, Issue 6

Trademarks, and trade-mark infringement, have been part of commercial life for centuries. But to-day, the technology of the Internet, as well as the time-honored tradition of trying to take advantage of a competitors hard work, have tempted businesses to do things with others‘ trademarks which approach the ethical and legal line, if not cross it.

A few years ago, many companies discovered that their competitors were using their trademarked corporate or products as “meta tags” for the competitors‘ web sites. Meta-tags are those invisible pieces of computer programming code which make search engines such as Google or Yahoo! think that a site is relevant to a particular search request. So, for example, a site which carried a meta tag of “Coke” might show up if somebody was searching using that word which, of course, is a world-famous registered trademark of Coca Cola company. Would a competitor take advantage of somebody else’s hard-earned branding?

It turned out that was happening all the time, and litigations arose in federal courts throughout the U.S. The prevailing rule from the early cases was that use of trademarks in meta-tags was not unlawful under the federal Lanham Act, because it was not a use of the competitors‘ trademark “in commerce”, which is a statutory requirement. These rulings were controversial, of course, and upset many large companies.

At least one state passed legislation banning use of meta-tags which include trade-marks. Perhaps for that reason, a recent trend has been in the opposite direction, finding that certain uses of meta tags are unlawful if they include the competitors full web site address or other identifying information. Courts have also ruled against meta tags containing trademarks if they create “initial interest confusion”, namely capturing consumers‘ attention even though the competitor doesn’t rely on actual con-fusion to make a sale.

Sneaky meta tag-related infringements are one thing, but Google and Yahoo! reshaped the competitive Internet marketplace by permitting ?sponsored links? generated by what Google calls ?AdWords?. By buying terms through a bidding process, businesses can have their web sites appear above or along-side the results of user searches. Of course, as businesses realized that they could “purchase” terms which were also trademarks of their competitors, things got a little hot in many markets.

In a federal court of appeals case heard just last week in New York, a computer services company called “Rescuecom” argued that Google was not entitled to sell the right to have ones web site appear when a user searched the term “rescuecom”. Again, at first the courts sympathized with Goggle’s argument that its AdWords program did no more than set competing businesses‘ web addresses next to one another, just as a grocery chain isn’t liable for placing its own generic versions of famous break-fast cereals next to the originals on its shelves. But again, recent cases have been based on the “initial interest confusion” doctrine, and have emphasized that where the sponsored link itself contains the competitors trademark, the use is unlawful.

Goggles official policy is to disallow use of trademarks as AdWords if the marks are used in the text of ads, which draws the line in more or less the same place. However, Google will not act without a formal complaint from the trademark owner, and many businesses don’t realize all this is going on.

But aren’t coin dealers beyond these sorts of tactics? No. I searched one prominent East Coast PNG dealers name this morning, and a competitor showed up as a sponsored link with the PNG members name in the title of the link, which should be against Google’s rules and might be unlawful under the “initial interest confusion” doctrine. Searching another (West Coast) member, I found a competitor who refers to the same type of merchandise but doesn’t actually use the members name in the link. In neither case was the competitor a PNG member. Nevertheless, I have heard that PNG members are as savvy as anyone else when it comes to obtaining the benefits of carefully-selected meta tags and AdWords pro-grams. My message to you is be ethical toward your fellow members and be careful with everyone else.

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