If you get work from your good local reputation or the web, don’t be surprised if a competitor is using the internet to covertly steal your work and in the process, potentially damaging your reputation.

In the last two months McKays has had 3 contractor clients seek advice about unlawful internet attacks. It’s real and it’s happening here and now.

In all 3 cases it has led to a loss of revenue and in two cases, the competitor was significantly damaging our clients’ local reputation. The competitor who had unlawfully used the internet to steal work from our clients, repeatedly did shoddy work for the people who thought they were dealing with our clients resulting in highly critical reviews of our client being publicly posted on the internet.

Unfortunately, it is not as easy as you might think to have such negative reviews removed from the internet.

Illegally chasing Google rankings

It is becoming increasingly common for businesses and their website designers to seek to improve their business’ ranking in internet searches by illegally including hidden text or keywords in the metadata or source code of their website. Metadata (or source codes) sits behind a web page and though not openly displayed, search engines like Google read or interrogate it when doing a search.

In the cases we currently have, our clients’ competitors have included in the source codes on their own website the business names and other details of our clients. The result? When you Google the clients’ business names, the first and second search results bring up the offending competitor, not the client.

Is this legal and can you stop it?

It is not legal and you can stop it if you have protected your brand properly.

If you can prove that another business is doing something like this or otherwise wrongfully using your business name or brand, overtly or covertly, you should immediately have your lawyers write to the competitor insisting that they desist from “passing off” their business as yours. You are also entitled to recover from them the profits they have made out of this illegal conduct. If you delay, you could be risking your ability to enforce your rights. But you could do more to protect yourself as a recent case shows.

How to see if a competitor is using your brand or details in their source code or metadata

If you look at a competitor’s website, go to the bottom of the webpage and right click on “View source”. This will reveal the metadata behind the website. You will see pieces of text which are designed to be caught by search engines such as Google and if you see your business name, your own name or other details about your business like your address, you will know that your competitor is trying to steal your work.

No ownership in a business name or company name

There is a common misunderstanding that if you have a registered business name or a company name, no one else can use that name and you “own” the name. As a matter of law, there is no ownership in a business name or any ownership derived from registering a company name. The only way to own a business name or brand, is through registering a trademark over your brand. If you hold a trademark and a competitor uses that name or logo or anything which passes for or could easily be mistaken for it, you can quickly put a stop to it.

Federal Court stops competitor using brand in source code

A recent Full Federal Court case dealing with a residential complex in Cairns is a good example of the Courts upholding the rights of the owner of a registered trademark and preventing competitors from wrongfully using the trademark in the competitors’ source code or metadata.

In that case, the developer of a residential complex in Cairns owned the registered trademarks “Harbour Lights” and “Cairns Harbour Lights” for rental and accommodation letting services. It licensed the use of those trademarks to Accor, the appointed on-site letting agent. The defendant operated a business in competition with Accor’s short-term letting operations.

The developer and Accor sued the defendant for a great number of trademark breaches but in this article we only deal with the metadata/metatag issue.

The defendant’s website used the term “Harbour Lights” in its source code. The developer and Accor argued that this infringed the registered trademarks. The Court agreed, finding that the defendant had infringed the trademarks.

The trial judge accepted that the source code “was visible to those who know what to look for”. On appeal, it was noted that the source code was “used by a search engine (such as Google)” and that it did not matter that the ordinary user of the site could not see the trademark “Harbour Lights” which was being used by the defendant. Putting the trademark in the source code was a breach of the trademark and illegal.

Conclusion and recommendations

This case now clearly establishes that a competitor hiding any part of your brand covered by a registered trademark in their website source code or metadata is illegal and constitutes trademark infringement.

Although there are other remedies, registering a trademark, which if done in consultation with a lawyer familiar with this area of practice, is not exceedingly expensive and is by far the best way to protect your brand and stop others benefiting from it.

If you would like assistance or further advice in relation to any issues relating to your business name or brand, please contact us.