Website Digital Marketing Practices: What is illegal?

At one point in their career, all professionals will encounter questionable digital marketing practices. However, it may not always be obvious: what may seem like a great idea to help your website visibility can in fact be illegal in regards to the internet laws applicable, and get you sanctioned. After all, hell is paved with good intentions (even in digital marketing). Seeing your brand in jeopardy by other unsuspecting or unethical businesses is not an agreeable situation either.

In this article, we will cover three digital marketing practices regarding websites at large and explain what the law states about them.

1. Domain names

A domain name is a website’s name. It differs from the URL as it refers to the whole website, not a specific page. For instance, Digital Plant’s domain name is “digitalplant-my.com”.

“Domain squatting” is registering, selling or using a domain name in order to profit from another’s trademark. Some may refer to it as “Cybersquatting”. Cyber squatters usually buy a domain name using the name of an existing business in order to:

• Either resell it with a considerable profit to the same business,
• Or gain some profit from the traffic deflection they create with online advertising.

This digital marketing practice is of course illegal and condemned by the global organization “Internet Corporation for Assigned Names and Numbers” (ICANN). In case of dispute, the claimant needs to expose how the domain name causes damage to his rights, and/or constitutes unfair competition.

Else, according to ICANN’s Uniform Domain Name Dispute Resolution Policy, only a trademark can be opposed to a domain name. The claimant must then prove all three following conditions:

• The domain name is identical or similar to a point of confusion to a brand on which he detains the rights
• The domain name owner doesn’t have any right or legitimate interest to assert on the domain name
• The domain name was registered and used in bad faith.

2. Search Engine Optimization (SEO)

Search Engine Optimization (SEO) is the practice of optimizing your website in order to get traffic (organic or un-paid) from the search engine results page. The search engines base their result page on complex algorithms that, while kept secret, consider the following elements relevant:

• Title and meta description tags of web pages
• Visible content of web pages
• URL address of the web pages
• Popularity of the page (number of links directing to the page, etc.)

An illegal SEO practice is to use the Meta tags of your website to include distinguishing features of another’s trademark. The reproduction of these features is not always visible from visitors (tag not displayed on screen or displayed in the same color as the background).

The French courts systematically condemn this type of practice: the case law considers that it is a form of unfair competition. American courts consider it as trademark infringement, deceptive trade practices and unfair competition.

“Cloaking is a technique used to deliver the content on a Web page to a search engine in such a way that different content than what is delivered to a regular human user appears on the search engine. The goal of cloaking is to boost a website’s search engine rank on certain keywords. In cloaking, the search engine and the user are literally not on the same page.” (source: Technopedia)

Since both visitors and search engine are deceived, this practice is also a violation of Google’s Webmaster Guidelines.

What is cloaking – Source: www.ipullrank.com

In addition, while this type of techniques can achieve a raise in website traffic, it will be short-lived. Indeed, Google will likely find out, resulting in penalties or even suspension of the website.

Illegal practices at large in SEO are called “black hat SEO”.

3. Search Engine Advertising (SEA)

Search Engine Advertising is paying search engines to include your website in the first search result page, usually at the top or side of the page. Search engines label these paid results as “sponsored”. Advertisers choose the search terms (keywords) for which their ad will be displayed. For some keywords, demand is high, resulting in prices going up.

What could possibly be illegal in purchasing keywords? Well, purchasing a keyword of another trademark. The risks and penalties are the same as using another brand’s meta tags in your website. Since they deflect some of the other website traffic, this type of practice is unfair competition at the very least.

I was once an intern in a startup where the owner thought this type of digital marketing practice was a great idea: since the search engine allowed it, it should be legal. Search engines may allow it or not, search for their terms of use. Keep in mind though that, in various countries, search engines are not accountable for the keywords you buy (even if their algorithm suggested the keywords). Overall, the only cases where it is legal to buy another’s brand name as keywords are (source: American Bar):

• If you’re reselling their product
• If your website landing page provides detailed information about the trademark products or owner (and you don’t promote competing products)

Digital marketing is vast; various strategies are possible depending on your objectives. However, international organizations, local laws and policies regulate the profession. Be sure to stay compliant with your strategies.

If you liked this article or have any question, please consider leaving a comment! Else, you may contact us to send your inquiry regarding websites or digital marketing practices at large. Both options are LEGAL…