New Metatag/SEO Lawsuit–Salu, Inc. v. Pitts

By Eric Goldman

Salu, Inc. v. Pitts (E.D. Ca. complaint filed Nov. 17, 2005).

Introduction

Salu operates skinstore.com, a website that sells skin care products. (With that name, I was totally expecting to find a porn site, but the website is office-safe). Pitts operates a competitive website newskinspa.com (also office-safe). Her co-defendant, Hogsett, is a search engine optimizer.

The complaint alleges (para. 15):

“the www.newskinspa.com website had copied the code and content of the Skinstore.com website. From this review Salu employees were able to determine that the defendants had copied the content of Salu’s website and then made superficial cosmetic changes so the website would not at first appear to be a copy. Salu employees determined, however, that the name “skinstore.com” repeatedly appeared within the code for the www.skinspa.com website, proving that the site had originally been created as a copy of the Skinstore.com website.”

The complaint then alleges that newskinspa.com “took over” skinstore.com’s high search engine placement because of this copying. The complaint specifically gives the example of search placement for the keyword “hylexin” (a third party trademark apparently owned by none of the litigants).

Trademark Infringement

The complaint starts out with a run-of-the-mill trademark infringement claim because the trademark “skinstore.com” appeared in newskinspa.com’s metatags. From my perspective, this claim looks fatally defective because the plaintiff never alleged that newskinspa.com was ever indexed on the term skinstore.com, so the factual allegations do not claim that any searcher on the keyword skinstore.com ever saw newskinspa.com listed in the search results. (Unlike the plaintiff’s claims about the search term “hylexin”). Indeed, we know that Google’s robot ignores text in the keyword metatags, so if skinstore.com appeared in newskinspa.com’s keyword metatag, the robot would never make the match.

Then again, I don’t like this claim because I don’t link any of the keyword metatag cases. Unfortunately, there’s plenty of caselaw treating the mere inclusion of a third party trademark in keyword metatags as per se trademark infringement, so this claim may have legal grounding.

False Advertising

The more interesting claim is a 43(a) false advertising claim based on copying the HTML code. With reference to the allegedly copied HTML code, skinstore.com claims (para. 37):

“The defendants’ copying of the code for the Skinstore.com website is a use in commerce of words, terms, names, symbols, and combinations thereof, in connection with goods or services, which, in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of Newskinspa’s goods, services, or commercial activities, within the meanin of 15 U.S.C. §1125(a)(1)(B).”

This struck me as a bizarre claim. How, exactly, does using someone else’s HTML code misrepresent the “nature, characteristics, qualities, or geographic origin” of either newskinspa.com’s website or goods sold via the website? The plaintiff did not allege a pagejacking, where a website copies HTML code such that the search result displayed to searchers looks like it’s from another website. (I’ve argued elsewhere that a pagejacking could be false advertising). Nor did the plaintiff allege that (a) its trademark was ever visible to searchers (either on newskinspa.com’s website or in the search results), or (b) any search result displayed to searchers contained any false content.

So who was confused about what? Perhaps the plaintiff is trying to claim that newskinspa.com was “deceiving” the search engines. Some commentators made arguments like this back in the late 1990s, but that argument never got much traction. I really don’t know how one deceives an automated process–especially one built to resist SEO gaming.

Instead, I think the plaintiff’s key assertion is that “defendants’ copying has caused Skinstore.com to drop off the search results list altogether and caused Newskinspa.com to take its place.” Here’s a news flash to the plaintiffs: WEBSITE RANKINGS CHANGE ALL THE TIME FOR LOTS OF REASONS–including changes in inbound links to the plaintiff or to the defendant, changes in third party anchor text, or changes in the search engine’s algorithms. Also, when I hear a website get dropped from the index completely, I start to wonder if maybe someone pushed their SEO too hard and got caught for search engine spamming.

In any case, we all know that correlation doesn’t equal causation, and I simply don’t see how the plaintiff can connect the dots between the defendant’s deployment of code on its website and the plaintiff getting kicked out of Google.

Conclusion

Consider what the plaintiff didn’t claim: it didn’t claim a copyright infringement of its HTML code (or its technique for optimization), it didn’t allege a common law trademark in the HTML code (not that the claim would have been strong), and it didn’t sue the search engines. Instead, the entire case rests on the premise that newskinspa.com can take over the ranking position of skinstore.com. Unless I’m missing something very big, this premise seemed pretty naive.

Cases like these usually fade into oblivion, often because the costs of litigation exceed the value. However, this case could easily fade away because skinstore.com either realizes that it was doing something that caused Google to kick it out, or skinstore.com magically reappears in Google’s index during the litigation pendency.

One more thing. Skinstore.com repeatedly touts its good placement for hylexin. I’m not saying that skinstore.com infringed that trademark, but they are pretty boastful about how well they were indexed on a term they don’t own, and I wonder how the trademark owner feels about that.

Hat tip: the Nutritional and Dietary Supplement Law Blog

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