Guest Post by: James Katz

In my last blog post, I focused on legal issues that can arise by the unethical use of Google Places listings, such as the use of a third party’s trade-mark in order to draw attention to what is in fact, a competitor’s website. As I indicated back then, there is no Canadian case law that deals directly with this ever more common scenario. As a result, I was forced to go to recent case law from the Courts of Australia for guidance, which can provide us Canadians with some indication as to what a Canadian Court would decide if faced with such a scenario. Well, it’s time for us to go Down Under again in order to shed legal light on how a Canadian Court might deal with a dispute concerning Google AdWords.

Many of the legal issues surrounding the misuse of AdWords overlap with those that can arise with Google Places. These disputes generally involve allegations that an advertiser has misled the buying public by the use of AdWords that are comprised of the names or trade-marks of competitors. It had already been decided in Australia and other jurisdictions that in such cases, there was no doubt that the advertiser (the person selling their products or services online) can be held liable in such cases for breaches of various unfair competition laws. But, thanks to an interesting April 3^rd Court decision, again from Australia, it now turns out that someone else could also be liable for such illegal Internet content: Google.

In a unanimous decision from a panel of three judges, the Australian Federal Court ruled that Google had engaged in misleading advertising, contrary to Australia’s Trade Practices Act, when it allowed advertisers to use competitors’ trade-names as AdWords keywords which then triggered their own advertisements. The complete decision can be found here. The provisions of that law at issue (which has since been repealed and replaced with new legislation) basically stated that it was unlawful for a business to engage in conduct that is either misleading or deceptive or likely to mislead or deceive. Google’s main defence to this charge was that it was only a passive (and therefore innocent) conduit for the activities of the advertisers in questions (who had all been found liable in earlier proceedings). It was therefore Google’s position that, as an ad hosting platform, only the advertisers that misuse the AdWords system should be held to account. After all, Google argued, it was the advertisers that put in place the AdWords which turned out to be deceptive, not Google.

The Court, however, rebuffed Google’s arguments in their entirety, and found that Google was no mere passive conduit for the advertisers’ activities. This finding, which was key to the whole case against Google, was in turn based on several findings of fact made by the judges, which included: 1) The contents that appear on a Google web page in response to a user’s query is Google generated content. More specifically, it is the program that Google employs that generates the search results page, pursuant to the AdWords facility that is made available to the advertisers by Google; 2) An ordinary and reasonable user of Google’s search engine would conclude that it was Google that displayed the advertisers’ sponsored links in response to the user’s search query. Critical to this finding was also the fact that what is in fact occurring when a user executes a Google search is that a) the user is asking a question of Google, and b) the search results (whether misleading or not) are Google’s response; and 3) the conduct in providing a URL in response to a search query (which in turn leads to the advertisers’ website) is Google’s. In all, the falsity of the conduct engaged in by Google is that, in response to a searched keyword phrase which identifies a competitor, it is Google that displays the misleading URL in its sponsored link search results. This is, the Court concluded, very unlike the typical case of a passive advertiser who simply disseminates words and images as an agent of its advertising client (which would generally not attract liability), simply because it is Google (more accurately its computer program) that created the message that it then represents.

It is assumed that, given the ramifications of this decision, Google will be appealing to Australia’s High Court, mainly because this decision could form the basis for other similar decisions in the Courts of the UK and Commonwealth.

Shifting back from Down Under to the Great White North, it is difficult to say whether or not Google could end up facing a similar decision in Canada. Although Canada’s Competition Act contains language that mirrors that of Australia’s trade law, it does differ in one material way: it requires showing that the person who makes the misleading or deceptive statement in its advertising did so either knowingly or recklessly. This requirement of subjective proof that Google was either aware of the misrepresentation being made by an advertiser or wilfully blind to that activity taking place would be a significant bar to someone trying to successfully sue Google for committing an unfair trade practice. Further, Google would likely argue that, under Canadian law, by requiring advertisers to agree to its terms and conditions of use which specifically prohibit forms of deceptive conduct, such as the misappropriation of a competitor’s trade-marks for an AdWords campaign, it would be entitled to rely fully on the available defence of due diligence.

So, we again see that, when it comes to the Internet, the legal landscape in Canada is murky at best. Although we draw on the legal experience from other countries to see how things will shape up here, until we get a decision from a Canadian Court, consumers and advertisers here will just have to continue using good (ethical) judgment and common sense in how they market their goods and services online.

Related Blog Posts:

Legal Issues with Google Places: From a Canadian Perspective
Domain Name Disputes: From a Canadian Perspective
Domain Name Dispute Resolution Set to Change for dot-Ca Domains

James Katz is Lawyer and Trade-mark Agent with the Ottawa law firm BrazeauSeller LLP. James’ practice focuses primarily on Internet related legal issues and litigation, including trade-mark and copyright infringement, defamation and online privacy issues.

Disclaimer: The contents of this Blog post, and associated opinions  are those of its Author, and do not necessarily represent the opinions of WebFuel, or its employees.

The Shifting Legal Landscape of Google AdWords: From a Canadian Perspective is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

How Have Search Engine Ranking Changed?
Like everything else related to Search, there have been many changes over time. In the early days (mid-1990’s), a SEO would ensure that the Search Engines could find your website. It was quite simple if you understood how the major engines worked and the fact that there was minimal keyword competition. In the formative years of Google, web searchers would actually take the time to visit the top three Search Engine Results Pages (SERPs). Today they rarely go past the first search results page. Page one ranking became a must for many businesses – and the higher you ranked (top positions) the better. It was the way to get that online competitive edge.  SEOs, like myself, would focus on this goal, run off ranking reports, and were measured on this metric by our clients.

Then…. along came countless changes including Universal Search, Personalized Search, Local Search, Social Search, Mobile Search (just to name a few). Add to the mix, the addition of Paid Search Ads (i.e. Google AdWords), Google Suggest and all the many, many SERP display changes.

The Result?

“Google basketball... bounces UP and DOWN just like your search results.” Source: Search Engine Round Table

To sum it up…. Rankings do matter; but in a different way.  You must be visible in search results based on web searchers that need to find you, their keywords and where they are searching.  And… then you need to get the click – or who cares? (I’ll save that for another post).

Are you still measuring SEO success on just rankings?

Do Rankings Really Matter? is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

Sitelinks: What are they?
Sitelinks are the additional links that appear in Google below an organic listing or an AdWords ad.

Organic Sitelinks
In the early days, Google displayed a website listing that simply included a title, short description and the site address in the search results. Eventually sitelinks began to appear below the listing to specific pages within the website. These were based on brand name searches (and variations thereof). This process of generating these links was completely automated by the Search Engine. Sitelink selection and ranking can change from query to query, allowing for more of a variety of optimized results. Over time, Google Canada has increased the number of links displayed and expanded them (to include a short snippet) giving much more visibility for one’s website in the SERPs.

Paid Sitelinks
Unlike the organic sitelinks, these additional links are generated by AdWords. These extra landing page links allow for more text ad real estate (up to four links). They are generated by the advertiser – not by Google (however the search engine needs to approve them). And… they can be based on branded as well as non-branded keywords.

Here is an example of sitelinks based on a Google Search for “WebFuel Ottawa”.

You will note from the example above, the two different types of sitelinks.

In the Paid Search section (which appears first in the search results), the sitelinks are “SEO” and “PPC”, which are our core services. This will allow us to give more visibility to relevant key web pages related to the ad (and track the results).

In the Organic Search results, the set of links include “About WebFuel”, “SEO Site Audit”, “Google AdWords”, “Google Analytics”, “Blog” and our “Contact” page. These additional internal links will drive web traffic to specific web pages within our website.

So… what does this have to do with PPC and SEO?

In terms of PPC, Google AdWords management can include implementation and optimization of sitelinks via the ad extension feature. Using this strategy allows for quick visibility on a Google results page – and should improve the paid keyword traffic. Improving natural (unpaid) web traffic would involve SEO. Optimization of those sitelinks relates to organic algorithm factors (including site architecture), visible results takes longer and requires (in most cases) advanced SEO techniques.

Are you taking advantage of sitelinks?

SEO, PPC and Google Sitelinks is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

Guest Post by James Katz

With the vast majority of consumers now searching for local businesses online, the importance of a Google Places listings to a business mining its local market can no longer be ignored. For those of you who are not sure what a Google Places listing is, or looks like, the good folks at WebFuel have provided a breakdown for you in the blog post entitled SEO & The Anatomy of a Google Places: From a Canadian Perspective.

My job as a lawyer that specializes in Internet related legal issues (which can range from simple contractual matters all the way to trade-mark infringement and cyber-libel) is to understand the legal issues that can arise from the use of Places listings. Suffice to say that, because of the volume of web traffic that Google sends, it wasn’t long before Places became a hugely popular location-based search tool. It also wasn’t long before legal issues associated with the misuse of Google Places listings began to arise, especially with regard to the issues of online trade-mark infringement and anti-competitive conduct.

Although Google has in place fairly strict policies governing the content of Google Places listings, including a general prohibition against using the intellectual property of others (such as trade-marks), it is important to understand what your legal rights are if you, and your business are faced with an online trade-mark dispute concerning a Google Places listing. For example, what if a competitor is using your business’s trade-name or trade-marks in its Google Places listing? Or, even more misleading, what if that competitor lists your unique business name or brand name as a link, which links not to your website, but to your competitor’s? Such tactics are not only unethical; they are also potentially in breach of Canadian trade-mark and competition law. I use the word “potentially” because, as of the date of this article, there are no reported Canadian court decisions that have concluded that such tactics are in fact illegal.

However, while the Canadian courts have been slow to address these legal issues, those in other commonwealth jurisdictions have a developing body of case law that indicates that such behavior is, in fact, unlawful. Recent court decisions in Australia (where Canadian courts often turn if a novel legal issue is being addressed in Canada for the first time)  have concluded that visible components of a trade-mark that appear either on a website or in a Google Places listing can amount to trade-mark infringement. The relief granted in that case included an injunction against using hidden meta tags on the infringing website that also made use of the infringed trade-mark, as well as an injunction prohibiting the infringer from using infringing keywords targeted via Google AdWords.

From a Canadian perspective, it is clear that using a competitor’s trade-mark visibly on a website (and this would include a Google Places listing) will amount to trade-mark infringement, especially if the infringing site itself that is linked to from Google Places is considered to be an active website, which in essence allows a consumer to purchase the infringing products or services directly through the website in question. In the case of passive websites (which are not set up to transact business, but act only as advertisements of the wares or services in question), the Canadian legal landscape is still unclear, as the appearance of infringing trade-marks on such sites may not be considered an infringing use of a trade-mark in association with wares. However, it is likely that such use may be considered infringing (under Canadian law) vis a vis services if the website is advertising services that are performed in Canada.

Canadian law is also unclear regarding the use of infringing marks in meta tags and paid keywords. However, given the Australian experience, it seems likely that, depending of the facts of a given case, that such unethical uses of a competitor’s trade-marks may, at the very least, be in breach of Canada’s Competition Act, which prohibits businesses from promoting its business by making a representation that is false or misleading in a material respect. It is also possible that such uses also amount to the tort of passing off, which essentially prohibits activities that are calculated to confuse consumers into thinking that infringing wares or services are in fact being supplied by the legitimate supplier and trade-mark owner.

Finally, it should be noted that trade-marks that also contain a design component (often called logos) are also protected as an artistic design under the Copyright Act. Therefore, there is no doubt that the use of such a trade-mark in Google Places or on a website, without permission, would amount to copyright infringement, which constitutes the unauthorized communication or reproduction of an original artistic work. As an aside, business owners must also keep in mind that if they use photographs in their Google Places listing, they must ensure that they hold the necessary copyright to use them. Stock photographs purchased (usually online) for Google Places listings or for any other advertisement are usually licensed, and commercial use of such images may be prohibited.

In sum, although Google has in place mechanisms to report infringements that occur via Google Places, keep in mind that it will often take Google months to even begin investigating such complaints. In the interim, your business could suffer as consumers are directed away from your website to that of your unethical competitor. Therefore, by exercising those legal rights available to you, you can equip yourself to take immediate and decisive action with your legal counsel to protect your business interests.

James Katz is Lawyer and Trade-mark Agent with the Ottawa law firm BrazeauSeller LLP. James’ practice focuses primarily on Internet related legal issues and litigation, including trade-mark and copyright infringement, defamation and online privacy issues.

Disclaimer: The contents of this Blog post, and associated opinions are those of its Author, and do not necessarily represent the opinions of WebFuel, or its employees.

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Legal Issues with Google Places: From a Canadian Perspective is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

We predict that the use of Search will only continue to grow in 2012. Search On!

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How the World Googled in 2011 is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

As the Search Strategist for WebFuel, I respond to the company’s SEO inquires and unfortunately hear many horror stories. As a result, I work more and more on resolving serious Search issues on behalf of newly acquired clients. Most of the time, what has been done from a SEO perspective (previous to hiring us) is a mystery. So…. like a Search Detective, I work to solve the case.

Here are the top most startling Search issues.

1. Not in the Google Index (at all)
   This sadly happens too often. We have had to resolve this type of Search issue more than any other – and it is serious. The most common reason is that the client did not have a Search Engine Friendly website built. In other words, the Search Engines cannot crawl their site. This means no indexation – and they will NOT show up in a Google SERP (Search Engine Results Page). You should hear the client’s blood curdling scream when this is brought to light.

2. Disappearing from Organic Search
   This is horrifying!!! One day key high-ranking web pages, or even worse, an entire website, no longer appears in Google SERPs. And… even more terrifying, this is often not noticed for quite a while as no one is even monitoring this.

3. Wrong Geographic Area (not your target location)
   Yikes!!! We see many variations of this frightening issue. Canadian businesses targeting the United States – Google.com but appearing in Google Canada (Google.ca). This requires lots of expertise to resolve (not simply hiring an American SEO Agency). Or… equally disastrous, Canadian companies whereby the target location is Canada – and Google displays their search results in the USA on Google.com. At the local level, Search Engine repositioning is required due to wrong city (i.e. Nepean Search rather than an Ottawa Search) or not entire geo-graphic region (i.e. province).

4. Stolen Web Traffic(that should belong to you)
   This issue is rarely known by the website owner (how chilling) – and only discovered when we audit the account. The most popular perpetrators are the client’s competitors (or the agency that was hired by the competitor), the business themselves (due to a poor online strategy) – and the worst violation, in my opinion, a third party supplier for the client. We have seen a huge increase in this type of scenario over the past year. The 3^rdparty vendor steals (and some are big well-known brands) your web traffic in order to improve their results on your behalf.

5. Bad SEO (Black Hat Techniques)
   Call it bad SEO practices or unethical standards it’s quickly becoming the norm (now that is scary). In our SEO Audits, we have discovered keyword stuffing, hidden text, duplicate content, cloaking, doorway pages, improper use of redirects and extremely questionable linking strategies – including invisible links on a page and inbound links from bad neighbourhoods (how creepy!!!).
   This is mostly due to the inexperience of the Search Engine Optimizer and simply not understanding the complexly of SEO.  But we also see many cases whereby the SEO strategy is based on intentionally “tricking” the Search Engines. This is known as “Black Hat” techniques. The real horrifying story here is businesses most don’t know that they have hired a Black Hat SEO Agency.

6. Keywords Scams, Myths & Issues
   This list is endless… SEOs selling organic keywords “you can buy these two”, rank for keywords that no one searches for, translating researched keywords from English into French (this doesn’t work) or hiring an agency that also works for your keyword competitors (no non-compete clause or they don’t honour it).

7. Google Ban (Organic & Paid)
   This is the worst horror story from our perspective. Not adhering to, or in compliance with AdWords policies resulting in a permanently suspended account. Yes – this means no Ads on Google. Or likely an even worse nightmare, violating Google Webmaster Guidelines – and getting banned from Organic Search. As a result, your website no longer appears for branded & non-branded keywords. You are now invisible in a Search!

Got your own SEO horror stories? Please share your chilling tales.

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SEO Horror Stories: From a Canadian Perspective is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

What is a Google Places Page?

 Formally known as Google Local Business Center, Google Places is like the Yellow Pages of the Internet. Think of it like a Google local web page or an online listing of your business. This local listing can display information about your business in text, image & video format and is tied into Google Maps. According to Google, 97% of consumers search for local businesses online. And… over the past year, the Search Engine’s local algorithm in Canada has resulted in more visibility for local organic search results on Google.ca.

Google Places and Google Maps appear in a Google SERP in the organic section. It’s important to understand the placement. In a previous blog post, we addressed the layout of a Canadian Google Search Engine Results Page in terms of Organic Search vs. Paid Search as well as where the engine displays Google Maps and Places. It is very prominent. Check it out if you require better understanding.

With Halloween just around the corner, and people searching for pumpkin picking farms in Ottawa, we decided to feature a local Places page.

Here is an example of a Local Ottawa Google Places Listing:

Google Canada Place Profile for a Pumpkin Farm in Ottawa

Business Information Section
This section is ideally provided by the business owner. It includes the name of the business, relevant categories, a short description, address, website and photo number. A web visitor can phone you, visit your website for more information and get directions via Google Maps (Canada).

Photo Section
Business owners and Google users can upload photos. These photos generally include storefront, products sold and people behind the business. They must, of course, follow Google’s guidelines. Videos can also be uploaded.

Review Section
“What people are saying” about your business in a review format falls under this section. Reviewers must have a Google account to post. Owners have the ability to respond to positive as well as negative reviews.

Related Content Section
Related places that appear in this area of your profile are generated by Google. It’s based on the Google Places algorithm. Google displays other related Places pages in your geographic area. If you are positioned properly in Local Search, you will also appear on your competitor page in this section.

Google Maps Section
This section is also generated by the Search Engine based on your Places listing. Google displays a street view with a map icon to indicate your location. Web visitors can click on the map for a large view and get directions by car, bus, walking or by bike (if applicable).

Google Ads Section
Unlike your listing that is free, this section is for paid ads. This is where Google Ads (known as AdWords) are displayed. While you cannot remove these ads, you can certainly place your text ads on Places Pages.

How does this relate to SEO?
From a SEO perspective, your Google Places profile page can give you visibility in the SERPs beyond your website. Think of it as an additional web property. Depending on your industry, and relevancy from a Google perspective, your Places listing can even outrank your website based on a local branded geo-search. You can also rank in Places for generic searches based on related local non-branded keyword queries. And… your business listing can send you qualified web traffic via the inbound link on your page (SEOs’ love this!).

Your business can also appear on other Places pages under related places and/or in the ads section. From our perspective, this means more visibility in local search!

At least 20% of Canadian searches are local. People search Google.ca and Google Maps to find local businesses. Claim it, optimize it, monitor it -and measure it!

Can you get found?

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SEO & The Anatomy of a Google Places: From a Canadian Perspective is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

According to Matt, there are plenty of good SEOs out there (also known as White Hat SEO). He explains that Search Engine Optimization basically means trying to make sure that “your pages are well represented within Search Engines”. He also acknowledges that are plenty of “White Hat” SEO strategies that can be implemented. They include helping out with the initial site architecture, URL structure, making sure the website is crawlable, finding the right keywords, ensuring fast website speed and optimizing content to convert.

He did add that there are bad SEOs out there, known as Black Hat SEOs that can produce web spam. Unfortunately for our industry, this is true.

Here is Google’s first video on the topic: Does Google Consider SEO to be spam?

And… just in case you are wondering, WebFuel is an ethical SEO agency.
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Google Says Ethical SEO is Not Spam is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

SEMPO Canada / SEMPO Ottawa Meetup

Date: Thursday, October 13, 2011

Time: 6:00 – 9:00PM

Location: Hard Rock Café in the Byward Market (Map & Directions)
The bar will be open (and food orders can be placed)

Presenter: Nectarios Economakis
Agency Lead at Google |  Montréal, Canada

Mobile: It’s not too late to be early
Mobile is ramping up faster than any other technology we have seen in the past. Your mobile device is a better shopping companion because it is personal, interactive, local and dynamic. Come learn about what is driving the growth of mobile, the key trends and how you can take advantage of mobile right now. We will look at Canadian mobile trends as well as Canadian Search habits on mobile devices.

Agenda

6:00PM - Event Registration & Networking

7:00PM - Nectarios Economakis Presentation (and Q & A session)

8:00PM - SEMPO Ottawa Meetup & Networking

Cost: $10.00/per person

SEMPO Members (free)
Just pay in advance and we will reimburse you at the event. You must be listed on the SEMPO Member Directory.

If you are not a member, join SEMPO now and attend for free. Plus receive all the benefits of a SEMPO membership for 12 months! Be sure to select the Canada Chapter when you sign up.

Student Admission (free)
Calling all students! We want you at our upcoming event featuring Google Canada’s Nectar Economakis. So much so that we will pay your way in. That’s right. We know that money can be tight. We were all students once. And besides, we don’t want you to miss out on this great event!

Just pay in advance and we will reimburse your money at the door – with a valid student ID that is. Courtesy of your friends at WebFuel & McGill Buckley.

Hashtag: #sempoottawa

Space is limited. Register for this event now!

Online registration is available until: Tuesday, October 11th (or until all tickets are sold out).

About SEMPO Canada
SEMPO Canada is a working group of the Search Engine Marketing Professionals Organization (SEMPO). We have meet-ups across the country, in Ottawa, Toronto, Edmonton and Vancouver. To learn more, please visit the SEMPO Canada website – and join our group on LinkedIn (English & French).

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SEMPO Ottawa, Google & Mobile Event: From a Canadian Perspective is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel

Guest Post by Stephen McGill

First of all by way of full disclosure, when I started my career in marketing and branding there was no world wide web. In fact there was no email, fax machines or mobile phones either. Yes there was electricity. And mass media – plenty of them.

As much as things have changed dramatically since the late 70s when I started out, the tenets of brand building have (in my opinion) remained remarkably similar. Branding has never simply been about beautiful logos, catchy slogans, award-winning television ads, welcoming storefronts, and glossy brochures or (these days) cutting edge websites and Search enhanced Social Media properties.

Instead branding has always been about delivering great products or services all wrapped up in the kind of positive and consistent experience where customers are driven to say – “Why would I go anywhere else?” It’s about making people prefer your offerings to all others available.

What the last twenty or so years have delivered to us as branders is an explosion of ways to create, build and sustain brands within a completely different landscape. I speak of course of the wonderful wide world of the web and the absolute avalanche of technologies and brand delivery options that have come along with it.  These are exciting times indeed for people who work with brands.

In my work as a brand development consultant I always state at the outset of working with clients that a brand should accurately reflect the true culture, personality and attitudes of a company or organization. It must also deliver a positive experience across all the points at which it connects with its customers and potential customers.

For brands of all sizes these days the most important (and sometimes only) point of connection with customers comes on the web. Quite often the web is now a crucial first point of contact. It is where consumers are getting their first brand impressions. Simply put the web is an incredibly powerful tool for connecting with customers, delivering a brand personality, building brand loyalty and enhancing brand experiences.

But here’s the thing I believe – you need to have a strong brand period before you can have a strong brand on the web. It used to be thought (just a few short years ago) that brick and mortar brands and online brands were somehow different. That is no longer the case. They are one and the same in the minds of consumers and – so they should be.

Amazon has become an almost ubiquitous shoppers brand because it consistently delivers what its customers want – great selection, competitive pricing, shopping convenience, copious amounts of product information and always-dependable service. All these things are hallmarks of a strong brand. The fact that Amazon does all that almost entirely over the web is irrelevant to most people. What Amazon has done better than most from early on is both understand the web and what it takes to build a powerful brand. That is a powerful combination.

So, which brands on the web do you think are getting it right like Amazon?

Disclaimer: The contents of this Blog post, and associated opinions  are those of its Author, and do not necessarily represent the opinions of WebFuel, or its employees.

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Branding on the Web – How is it different? Or, is it? is a post from: SEO Ottawa | Search Engine Optimization and Internet Marketing Agency | WebFuel