Internet sites are multiplying at an amazing rate. According to various estimates the amount of data stored on the web is doubling every three to six months. Such being the case, competition for surfers is becoming stronger and stronger - a real war. And war is war: - from free advertisements (http://www.linkexchange.com or in Israel, the Israeli HyperBanner), through an organised network of links from site to site (http://www.webring.org) to free gifts (software, copies of articles, etc.).
The main battle field is the search engines. There are several hundred such services, of which ten to twenty are the most important (such as Yahoo!, Lycos, Alta-Vista, Hot Bot, Infoseek, Excite and others), without which it would be almost impossible to find anything on the Internet. The objective of the battle is to appear on the first page of the search results. Most of the methods adopted are completely legitimate; a few, whilst perhaps legitimate, are somewhat offensive (for example, including words like "sex" in the same colour as the page background, so that the surfer cannot see them but the sites are returned by search engines as a result of their cataloguing the page in that highly sought after category). Other techniques go beyond the bounds of legitimacy. An action has recently been filed in the USA, seeking to define the bounds of the permissible and the prohibited in the advertising of sites. The full text of the complaint can be found at http://www.patents.com/ac/complaint.sht.
The firm of Oppedhal & Larson of New York specialises in patent law and intellectual property. Since the beginning of July 1995 it has been operating an Internet site of repute, whose address is http://www.patents.com. The address, which was wisely chosen by the firm, has become one of the most important sources on the Internet for information on intellectual property. The site gives great prominence to the firm's name. As befits a firm specialising in intellectual property, it has even gone to the trouble of protecting the name by registering a trademark.
In its complaint, the firm alleges that ten defendants have chosen to base themselves on its goodwill by including in their Internet sites the words "Oppedhal" and "Larson". They have done so sophisticatedly by using HTML programming language. One of the tags in the language is called "META", that makes it possible to define words which will only be recognised by search engines. Since the defendants included the plaintiff firm's name in the META command embedded in their Internet pages, a search for the plaintiff firm's highly regarded Internet site will also return the defendants' sites.
According to the complaint, because of the firm's investment in advertising the Oppedhal & Larson trademark, it has acquired a strong secondary meaning in the minds of the public and business community, which now identify it with the plaintiff's services. At the beginning of July 1997, two years after inaugurating its Internet site, the plaintiff ran a search on the words making up its name in one of the search engines. The search returned eleven exceptional pages. Close study of those pages revealed that they contained the names Oppedhal and Larson eight times each, hidden from view. A defence has yet to be filed.
Most of the defendants have already removed the plaintiff's name from
their pages, although like every new issue concerning the Internet, this
complaint also raises intriguing questions. For example, whilst it is
presumably clear that a trademark should not be included in a META tag, is it
permissible to include the words that make up a domain name? The
plaintiff's proprietary domain name only includes the word
"patents"; the writer's domain name merely contains the word
"law". It would apparently be too far-reaching to prohibit the use of
such everyday words, which would likely result in a grave disruption of the
flow of information on the Internet. But what about less everyday domain names,
for example, "goodfood", the
name of a new Israeli site, or "netlaw" etc.? The answers will
certainly come from the USA, the home of endless litigation. The actions which
are being filed and tried there are undoubtedly breaking new ground in the area
known as CyberLaw. Incidentally that is apparently also a registered mark,
which is rapidly becoming the Internet equivalent of "hoover".
Translated by Word Power