This article by Stuart L. Adams, Jr. appeared in the 

Louisville Computer News

(November 1998)

No, this is not a belated article about Halloween, even though it features "spiders" and the Web. We’ve all probably been bitten by a spider or two in our lives, but hopefully not by a Web spider. Just when you thought it was safe to put your business on the Web, you start to feel like Dorothy in the Wizard of Oz, surrounded by unseen dangers.

A Web "spider" is a type of "bot," "crawler" or robot/automated software which explores the World Wide Web, retrieving a document and following all the "hyperlinks" in it. The program then can generate a catalog which can be accessed by "search engines" such as Alta Vista, Excite and Lycos. Because Web sites are so well linked, spiders can typically cover and catalog vast areas of the Web by starting from a few sites. Then, when you type in a key word or phrase at one of these search engine sites, you will typically get a lengthy hypertext list of Web sites which have used that key word, and are therefore presumed by the search engine to be responsive to your inquiry. When you click on the link in the list, you should magically appear at the Web site you were looking for. So says Glinda, the good witch.

Operators of Web sites seem to be encouraged to create hypertext links to other sites which are drafted and interpreted in a computer language called HTML, or hypertext markup language. These typically are the blue underlined text references which, if clicked with your mouse, will then summon up another Web page from the same or a different Web site. Some allege that such links are an inherent part of the Web which helps it to function through interconnectedness.

Oz started out to be pretty but soon became a nightmare for Dorothy. So too have the "evil ones" figured out a way to unfairly compete on the Web. Like Oz, everything is not what it appears to be on the surface. There are layers on the Web and its Web pages. One basic element of a Web page is its visual content, which is used by the bots to catalog what the page is about. A less obvious layer is the hypertext link which sometimes serves as content but also serves to transport you to another land/Web page. In other words, we may not be in Kansas any more.

There have been a number of lawsuits filed by companies complaining of unfair competition against competitors and others who have engaged in "parasitic" behavior by using links at their own site to gain traffic at the expense of others. One example is a suit by Ticketmaster Corp. which sued Microsoft Corp. over this. The charge is that the two had been negotiating a deal but the deal fell apart. Microsoft then allegedly engaged in unfair competition by including a link to Ticketmaster at Microsoft’s "Seattle Sidewalks" city guide Web site, as a way of promoting ticket sales to events featured at the Microsoft site. The Microsoft link led to the order page, deep in the Ticketmaster Web site, bypassing the Ticketmaster home page and most of the expensive banner advertising, causing lost revenue to Ticketmaster and its client advertisers, as well as dilution of its trademarks. Microsoft has counterclaimed for a declaration that such use is legal, "to remove any chill from the free workings of the Internet."

Another earlier case in Scotland initially resulted in the equivalent of an injunction, when one newspaper caught a competitor linking headlines on its Web site to articles on the Web site of the other. The case, based primarily on copyright issues, is still pending.

Another variety of unfair competition or deceptive trade practice on the Web comes in the form of "invisible trademark infringement." This can be characterized by the following example. Lets say Company A has a well established Brand A product. Along comes Company B, which wants to capture as much of Company A’s market as fast and cheaply as possible. Morals do not get in the way of Company B. Company B then posts a Web site with information (content) about Company B products, which are visible to the reader. The reader, however, found the Company B site by placing key words about Company A in a search engine like Alta Vista or Lycos, which sent out its army of spider bots to its catalog of sites, which mentioned Company A key words.

The inquiring reader is surprised to land at the Company B Web site, since it doesn’t seem to mention the Company A product or service being searched for. But, since the sites offer similar "goods," maybe the visitor will "shop" at B, rather than at A. If so, obviously A has lost some business and B has benefited from A’s name and reputation. How did this happen and is it illegal?

In this example, Company B has used "meta-tags" to lure the search engines and its customers to its site. Web pages are written in HTML. The HTML code not only produces the text and other formatting (the commands that make text bold or italic, for instance) on the Web pages which the reader can view, but it also produces "hidden" elements which do not readily appear and usually are unnoticed. (You can view this "hidden" element of the Web pages in a browser, such as Netscape Navigator, by clicking on the "view" and then the "page source" menu choice while on a Web page.)

An example of a meta-tag is:

<META HTTP-EQUIV="keywords" CONTENT="This site can help you learn about unfair competition and Dorothy from Kansas who was terrorized by a wicked witch in the land of OZ.">

This example could lead you and your search engine to this site if you were looking for information on unfair competition, Dorothy, Kansas, terror, wicked witches, or OZ. Suppose, however, you were selling children’s shoes, and just hoped to attract small children or their parents to shop at your virtual shoe store, while they were looking for something totally unrelated. Suppose your site contained nothing about Dorothy or OZ. Suppose you were Company A and found that Company B put Company A’s name or trademarked product in a hidden meta-tag at Company B’s Web site with no visible mention of Company A or its products. That’s just what some companies are doing.

Some search engines use spider bots which create their "content" catalogs not only by looking at the visible words in the real content of a Web page, but also search the HTML meta-tags, which are supposed to contain "information about information" on that page or at that site. It could, for instance be the title of the page or a summary of the information in the bona fide content. It could also, however, be put there by the Wicked Witch of the West to mislead.

One of the first legal actions filed over this was initiated by the law firm of Oppedahl & Larson, which is a well known firm specializing in patents, trademarks and copyright issues. One of the law partners used a search engine and plugged in the law firm’s registered name. Up came a number of Web sites with no visible reference to the law firm. Suit was filed under several legal theories, and although the Web site creators, who were attempting to pirate away traffic looking for the law firm, have now deleted the offending misleading meta-tags, the law firm is still looking for damages.

A number of these meta-tag suits have been filed, including one by Playboy Enterprises, Inc. against Calvin Designer Label for burying the words PLAYMATE and PLAYBOY in meta-tag code at the defendant’s Web site, which had nothing to do with Playboy. In that case an injunction was awarded for use of the trademarked words in only machine readable code to lure customers away from the true owner of the trademark.

YOU’VE BEEN FRAMED

Yet another variation on the palming off or false designation of origin ruse is the "framing" trick. A lawsuit was filed by The Washington Post and several other publishers against TotalNews, Inc. which was alleged to have created this type of "parasitic" Web site. The tactic here was to republish the news and editorial content of the plaintiffs’ Web sites in a "frame" or sub-window of the TotalNews Web site. By doing this, when a reader hyperlinked to the new site to view the plaintiffs’ material, they did so within the visual confines of the TotalNews Web site, still viewing a frame or border of TotalNews’ advertising. Frames use hyperlinks to call up another Web address, but contrary to traditional hyperlinks, much of the original page remains visible around the edges of the screen view, just like a picture frame with advertising and reverse links to other areas of the original site.

WHAT TO DO

Unfortunately the law has not kept up with Web commerce and its tricks. To determine if your trademarked or copyrighted material is being illegally used, plug in the key words to search engines and see what you find, perhaps looking for inexplicable hidden code lures. Obviously, file for your trademark, service mark or copyright as soon as possible. The Copyright Office of the Library of Congress has issued informal guidelines on how it will treat on-line works which are submitted for registration. Applications are available from the Office’s Web site at www.loc.gov/copyright and when filed must be submitted with a $20 filing fee and a deposit of the work. The form to be used will depend on whether the site consists primarily of visual elements (form VA) or text (form TX).

This and other elements of Web protection are tricky and ever changing as the law tries to catch up. Placing a statement on the Web page describing restrictions on the use, distribution and reproduction of materials at the site can be helpful. For sure, after registration for state and federal protection, put the proper copyright, trademark and service mark symbols in appropriate places on each page, or somebody might drop a house on you.