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March 17, 2010

How Can SEOs Avoid More Trademark Trouble? — SEM Synergy Extras

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Today is SEM Synergy’s 100th episode anniversary and we celebrated live on the air! It was exhilarating and exciting and rewarding and fun and people were hanging in the chat room and Bruce was answering questions on air and people called in to the show and there was so much love going around I think I’m still on cloud nine!

Breathe, Virginia…

Seriously, thanks to friends and listeners for all the kudos and support, and thanks for listening to the show because that’s what makes it worth doing!

If you tuned in to the show today, you heard Bruce, Susan and I talking about how Rhea Drysdale (who you may know as co-founder of Outspoken Media or from her frequent SEM conference speaking gigs or as next week’s SEM Synergy guest!) defended “SEO” from being trademarked.

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CC BY-SA 2.0 SEO trademark denied!

When the SEO community learned of Rhea’s story, they immediately snapped into action to donate the out-of-pocket legal costs that had piled on Rhea and Jonathan Hochman, another trademark opposer. You can find a recap of the full story (among other juicy delicious news and articles) in yesterday’s SEO Newsletter.

While we’d like to think that such an undeserved trademark claim to a common term like SEO would never have gone through, nobody knows what could have happened if Rhea and the opposition hadn’t acted when and how they did.

The issue now is that this trademark application is not the first of its kind, and it won’t be the last. (Here’s a trademark application for SEO that’s currently in the queue!) Anyone else think it would be ridiculous to watch this happen again? How can we be sure someone will come to our rescue next time?

Some have proposed that SEMPO, the industry’s professional organization, should take up the cause. Bruce, who sits on organization’s board of directors, explained on the show today that he’ll be bringing the issue up with the board to see what might be possible. I think we can all agree that it’s time to ensure SEO is treated as a generic term in the public domain, so it seems it’s time for some legal advice.

From a little sleuthing I found this Wikipedia entry (sophisticated, I know) on public domain for trademarks:

Terms can be deemed “generic” in two ways. First, any potential mark can be deemed “generic” by a trademark registry, that refuses to register it. In this instance, the term has no secondary meaning that helps consumers identify the source of the product; the term serves no function as a “mark”. Second, a mark, already in use, may be deemed generic by a court or registry after the mark is challenged as generic—this is known as “genericide”. In this instance, the term previously had a secondary meaning, but lost its source-identifying function.

I’d think that the second option would only be applicable if “SEO” was already a trademark, which it’s not. So that leaves us with the first option, which is to trust that the U.S. Patent and Trademark Office won’t let anymore of these applications though. And if the USPTO opens the doors to another, it may come down to another individual reaching into their personal pocket to champion the security of SEO once again.

Let’s not let that happen again. At the very least, can we agree to rally around the issue if it ever comes back up? Can we promise not to let another individual tackle the issue alone? And of course I’ve gotta ask, any trademark lawyers in the house?

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6 responses to “How Can SEOs Avoid More Trademark Trouble? — SEM Synergy Extras”

  1. Wesley LeFebvre writes:

    Good timing for the post, Virginia. I bet you caught everyone’s attention with this one. I’m bummed I never think to tune into the show, though… I’m tuning in next time! :)

  2. Andrew@BloggingGuide writes:

    Congratulations on SEM Synergy’s 100th episode anniversary! More Power to you!!!!

  3. Virginia Nussey writes:

    Please do, Wesley! Next week I’ll be talking to Rhea so it’s sure to be another interesting conversation! If you want to hear what you missed this week you can check out the show archives on iTunes. Of course, my favorite time to listen is definitely during the initial airing when the chat room’s hoppin’! Hopefully see you there!

  4. Virginia Nussey writes:

    Thanks again, Andrew! It’s such a blast that 100 kinda just crept up! I’m looking forward to the next 100!

  5. White Label SEO Reseller writes:

    It would have been like placing a trademark on vanilla ice cream. I’ve never heard about this until now. Glad I did some leisure reading on your archives. It’s scary to think that someone would be devious enough to try and create a draconian future for us SEOs. I’m very grateful to Rhea and Jonathan for the efforts they’ve given, and for the courage they’ve shown. I know that this is very late, but thank you very much.

  6. Brent Rangen writes:

    This just happened to a client of mine. He received a letter that his usage of a keyword in a sub domain must be removed. It didn’t make much sense because it said the sub domain had to be removed AND redirected to their own site. Nothing better than trademarking a keyword that is very brand-able and then let your compliance officer do your link building for you!

    On the flip side, Should they go public with the letter? I have seen (in one particular case) where cease and desist orders from the DCMA was scanned and uploaded to a site and that spurred massive link building as a result. Now their site ranks higher and has more link juice coming in than they could have ever imagined.

    In my opinion, SEMPO should have intervened Rhea’s case. They still can. It would be nice to know someone has our backs.



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