It is not only the appearance of a site that can provoke the wrath of critics, but also its structure.  Many of the sites on webpagesthatsuck.com are visually impressive but confusing to the point where visitors are unable to find what they are looking for.  One of the main reasons behind poorly designed websites is a widespread lack of familiarity with important considerations.  Many people believe that a good website is simply something which is visually attractive, but they do not consider the structure, navigation, accessibility and numerous other aspects of good web design.

Another significant problem is communication, without a basic understanding of the process, and some of the jargon, it is difficult for a layman to be sure that their web designer understands their requirements.  Breakdowns in communication can lead to sites which do not fit their purpose, and where care has not been taken to ensure that the agreement between a buyer and their web designer is clear this can lead to disputes and expense.

To address these problems we have written an E-book to help SMEs understand the process, issues, and good practices relevant to commissioning a website – find out more about our e-book: How to Commission a Website that will Win You more Business, and Help You Make More Sales.

This is because although a number of people bought the product, it was clear from some of the general comments and questions we were receiving that many did not understand what the product actually was, and why they needed it.  Some wondered whether SEO Contract in Context was intended to be a DIY SEO tool.  (The answer is no it isn’t.  It’s what I wish I could have had available to me 5 years ago when I had a website created for Azrights, and would have liked to know how to promote it on the search engines cost effectively).  Given SEO is not a service many people have ever bought, or intend to buy, some didn’t have too much trouble deciding they didn’t need it.

However, SEO is essential literacy that anyone doing business online needs to acquire.  It has become doubly important with the rise of social media.  That is why we decided to open up access to it for free and to give those who purchased the product a credit note.  Here is a link to SEO Contract in Context.

Another reason for taking this decision is so that we can point people to it as an example of what they can expect if they purchase the many other products we have in the pipeline such as Website Contract in Context due to be released on 23 March: Website Contract in Context.  There is currently nothing like them on the market.  

A further benefit of opening up SEO Contract in Context to a wider audience is that we will hopefully receive feedback which we can use to further improve and enhance both this free SEO product and the other products that are in the pipeline.  An improved second version of SEO contract in Context is due for release before 23 March. So if you have any further thoughts as to how we might improve it please do submit your feedback.

Search Engine Agreements

Search Engine Optimisation (SEO) in the broadest sense of the word, is an important topic for businesses to understand as it is how you enhance your online presence.

Understanding how to obtain the best results from your SEO consultant involves using an effective contract that is written in language readily understandable by both parties.

Looking around on the web, I came across a number of comments and misconceptions about SEO contracts. Many people seem to think an SEO contract is optional, and that unless you sign a piece of paper you do not have a contract.

Basic contract explanation

So it is important to appreciate that when you ask someone to perform a service for you, such as to do keyword research or to optimise your website, a contract comes into existence as soon as an offer is made for an estimated or set price which is clearly accepted.

For example, if you are engaging a web designer, it is enough that the designer knows broadly what you want. For example, this might be based on your having said you want a really nice looking website, and picked a few sites you liked the look of, received a quote, which you clearly accepted. None of that needs to be in writing. You will be bound in contract whether you realise it or not. If one party denies that a contract was formed the law has ways and means of establishing the truth, by looking at certain background facts to work out which of the two parties to believe.

A contract is formed much sooner than is appreciated

Provided it is clear who the parties to the contract are, what the contract relates to, and how much will be paid, then a contract exists as soon as an offer is deemed accepted in the eyes of the law. No formality is needed.

Therefore, you may carry on your discussions thinking you are still negotiating terms when in fact it will be too late to make your further requirements form part of the agreement. Once the contract has already been formed you may discuss details, but that is different from adding new stipulations, such as strict time limits for performance.

Changing your mind

Say it is agreed that the other party will build a website in return for an agreed fee of £5,000, but many of the details (such as whether it should come already optimised for the search engines) have not yet been discussed. If your agreement was based on your having a beautiful static site designed for you, and then later you changed your mind and decided that actually what you wanted was a well optimised site on a content management platform, if the designer could not deliver your changed requirement, and you wanted to engage someone else, you would be in breach of contract. If the designer wanted to, they could ask you to pay damages for cancelling the contract.

Now the fact that in practice most disputes are resolved between the parties because people tend to be reasonable and manage to sort out their disputes without the need to involve lawyers or the courts is no reason to assume that contracts should therefore be ignored. Similarly, the fact that the discussions were oral and nothing was committed to paper does not mean you cannot be challenged about breaking your promises. It would just be rather more messy, and expensive to sort out disputes based on a purely oral contract.

Importance of contracts

Contracts serve many useful functions. Often with search engine optimisation, buyers have a rose tinted view of what they will receive when they engage an SEO consultant. The SEO may want the work, so has less incentive to enlighten the buyer about the reality of what can be achieved within their budget. It is not for no reason that the law cautions ‘Buyer Beware’. It really is more important for buyers to look out for themselves and check that what they are buying is what they think they will get.

But because buyers of SEO or other internet related services often lack the necessary understanding of the service, it is difficult for them to take control.

That is why we have developed our Contract in Context System for helping buyers, lawyers and SEOs to get the know how they need about SEO and also about contracts.  By implementing an SEO strategy for their business, and using a suggested contract template when engaging SEO consultants, small business owners can take control and put in place an effective, plain English, short contract to ensure a successful outcome.  SEOs will learn a lot from the System, even though they already have the SEO know how that is included as part of the System.

Find out more by registering for our free teleseminar “Top Tips to Take Control of your Internet Marketing” on 26 Jan (even if you can’t attend, by registering we will send you details of it).

Google and Yahoo, who allow use of competitors’ brands as keywords in pay per click advertising, have both had to defend their position in the courts across Europe.  The issue turns on whether use of competitors’ brands as keywords constitutes ‘use’ for trade mark purposes.  If it does then advertisers expose themselves to an action for trade mark infringement.

Understanding of Search Engines

Many people are still unaware that the search results appearing at the top of Google and along the right hand side are paid for advertisements.  So, whether out of ignorance or otherwise, or because searchers know they can expect more relevant websites when they click on the sponsored advertisements, advertising with search engines is increasingly popular and effective.  It allows advertisers to immediately appear in the search results  on page one of google   whenever their desired search terms are searched on by potential customers.

The fact that Google changed its policy on adwords in order to allow companies to choose keywords that are their competitors’ trade marks has given rise to misunderstanding.  It is important for companies to be aware that just because Google allows them to use competitors’ keywords does not mean it is desirable or risk free to do so.  Indeed it would be prudent to only use competitors’ trade marks as keywords once fully appraised of the potential risk of trade mark infringement litigation.

Recently Marks and Spencer as noted in my earlier blog post ‘Beware keywords in Google Ads’ was threatened with litigation by Interflora.  Interflora objected to the fact that whenever a search was made for the term INTERFLORA a sponsored ad belonging to Marks and Spencer promoting flowers would appear among the search results.

Last year, the English High Court decided that Yahoo had not infringed the trade marks of the trade mark owner of “Mr. Spicy” when users searched for the term “spicy”. As Laurence Kaye points out the case only concerned the position of the search engine. It didn’t look at the position of the advertiser who bought the search term (although this would have been a weak case given the generic nature of the trade mark itself).

The case establishes, for now, that a search engine does not “use” a trade mark as a trade mark merely by displaying an ad with keywords featuring all or part of such a trade mark in sponsored search results.  However, the case does not answer the question whether the advertiser (that is, Marks and Spencer in the above example) using Interflora’s mark as a trade mark when it bids on a competitor’s mark as a keyword.

The recent cases in Europe on whether use of adwords can constitute trade mark infringement are briefly mentioned below.  Decisions of the European Court of Justice are anticipated this summer.

France

The French courts have joined three cases to be referred for preliminary rulings. These cases are part of the ongoing dispute between Google France and Louis Vuitton Malletier over the use of keyword advertising and internet searches that display sponsored links referring users to sites selling rival products and even counterfeits. The Court heard arguments in the dispute recently.  Lawyers for Louis Vuitton contend that Google advertising gives companies which sell counterfeit goods the unprecedented ability to promote their products in ways beyond their wildest dreams. Google argues that the decision to click or buy ultimately rests with the internet user and not with them.  The Court’s decision will be pivotal for the future of search engine advertising.

Germany

Recently, the German Federal Supreme Court ruled on two other ad word cases and has referred a third to the ECJ.  All three cases were based on instances when the defendants had purchased the claimant’s trade mark as an ad word. This was shown as a sponsored link. None of the actual internet advertisements included a reference to the trade mark or the trade mark owner.

The first case concerns the ad word “Beta Layout.” This case is slightly different from the others because the word in question was registered as a company name which is protected as a trade mark under German law. Therefore this case did not involve a point of EU law but simply German law. The Court found that internet users would not assume that the sponsored link, which was visually separated from the search results, originated from the claimant.  Therefore this was not an infringement.  It also decided, given that the legal protection of company names was not based on harmonized European law, that this matter did not have to be referred to the ECJ for a decision. A problem with this decision is that Germany may be left with two different levels of protection for trade marks and company names which is incompatible with the German law principle that company name rights enjoy the same protection as trade marks.

The next case concerns “PCB” and both parties are active in the field of printed circuit boards. The claimant had a registered mark for “pcb-pool.” The defendant purchased the ad word for “pcb” only.  However when typing “pcb-pool” into a search engine the defendants sponsored search results were retrieved. The court ruled that the trade mark owner could prohibit use of the descriptive term “pcb” which is an acronym of “printed circuit board.”

The last case is on the purchase of the ad word “bananabay.” Both the defendant and the claimant are in the field of selling adult entertainment products.   The claimant owned the trade mark “bananabay” and the defendant had purchase an adword for that term. The Court has referred the question to the ECJ whether adwords used in this way is trade mark use. The decision will also have a huge impact on other ad words cases throughout Europe.

The Netherlands

A recent case has recently been referred to the ECJ. The dispute is between two companies Primakabin / Portakabin who both offer cabins for sale via online advertisements. Primakabin had purchased the ad words of “portakabin” as well as other similar words. The Dutch court has referred the question of whether this constitutes trade mark use to the ECJ. It is likely that the Court will decide this case as well as the previously mentioned German case at the same time.

Conclusion

The decisions in these cases will be important but they are unlikely to be the end of these types of disputes since they are unlikely to be able to answer all questions on how adwords relate to trade marks.

What will be interesting is to see is the extent to which Google will be able to disclaim all responsibility for giving advertisers a platform from which to promote their counterfeit and infringing goods to consumers.