Legal relationships can be complex, but they are critical to the success of any business because they set out the expectations and obligations of the parties involved, and so without a well thought out agreement you risk paying for services that do not fit your needs. Unfortunately specialist legal advice can be costly, and beyond the reach of many small businesses.

The truth is that the only way to maximize the return on your investment in SEO is to understand both what it involves, and how to ensure that if you do need to outsource the work the terms of your agreement specify your requirements accurately. This way both you and your consultant know what is required, and you are left with legal recourse in the event that obligations are not fulfilled.

We have introduced a new product that addresses these issues by providing multimedia background information on contractual agreements and SEO to inform your decisions, and a contract template which you can tailor to suit your particular circumstances. To find out more about the SEO Contract in Context System please read our press release, or if you are interested in purchasing find out more on our product page.

Search Engine Agreements

Search Engine Optimisation (SEO) in the broadest sense of the word, is an important topic for businesses to understand as it is how you enhance your online presence.

Understanding how to obtain the best results from your SEO consultant involves using an effective contract that is written in language readily understandable by both parties.

Looking around on the web, I came across a number of comments and misconceptions about SEO contracts. Many people seem to think an SEO contract is optional, and that unless you sign a piece of paper you do not have a contract.

Basic contract explanation

So it is important to appreciate that when you ask someone to perform a service for you, such as to do keyword research or to optimise your website, a contract comes into existence as soon as an offer is made for an estimated or set price which is clearly accepted.

For example, if you are engaging a web designer, it is enough that the designer knows broadly what you want. For example, this might be based on your having said you want a really nice looking website, and picked a few sites you liked the look of, received a quote, which you clearly accepted. None of that needs to be in writing. You will be bound in contract whether you realise it or not. If one party denies that a contract was formed the law has ways and means of establishing the truth, by looking at certain background facts to work out which of the two parties to believe.

A contract is formed much sooner than is appreciated

Provided it is clear who the parties to the contract are, what the contract relates to, and how much will be paid, then a contract exists as soon as an offer is deemed accepted in the eyes of the law. No formality is needed.

Therefore, you may carry on your discussions thinking you are still negotiating terms when in fact it will be too late to make your further requirements form part of the agreement. Once the contract has already been formed you may discuss details, but that is different from adding new stipulations, such as strict time limits for performance.

Changing your mind

Say it is agreed that the other party will build a website in return for an agreed fee of £5,000, but many of the details (such as whether it should come already optimised for the search engines) have not yet been discussed. If your agreement was based on your having a beautiful static site designed for you, and then later you changed your mind and decided that actually what you wanted was a well optimised site on a content management platform, if the designer could not deliver your changed requirement, and you wanted to engage someone else, you would be in breach of contract. If the designer wanted to, they could ask you to pay damages for cancelling the contract.

Now the fact that in practice most disputes are resolved between the parties because people tend to be reasonable and manage to sort out their disputes without the need to involve lawyers or the courts is no reason to assume that contracts should therefore be ignored. Similarly, the fact that the discussions were oral and nothing was committed to paper does not mean you cannot be challenged about breaking your promises. It would just be rather more messy, and expensive to sort out disputes based on a purely oral contract.

Importance of contracts

Contracts serve many useful functions. Often with search engine optimisation, buyers have a rose tinted view of what they will receive when they engage an SEO consultant. The SEO may want the work, so has less incentive to enlighten the buyer about the reality of what can be achieved within their budget. It is not for no reason that the law cautions ‘Buyer Beware’. It really is more important for buyers to look out for themselves and check that what they are buying is what they think they will get.

But because buyers of SEO or other internet related services often lack the necessary understanding of the service, it is difficult for them to take control.

That is why we have developed our Contract in Context System for helping buyers, lawyers and SEOs to get the know how they need about SEO and also about contracts.  By implementing an SEO strategy for their business, and using a suggested contract template when engaging SEO consultants, small business owners can take control and put in place an effective, plain English, short contract to ensure a successful outcome.  SEOs will learn a lot from the System, even though they already have the SEO know how that is included as part of the System.

Find out more by registering for our free teleseminar “Top Tips to Take Control of your Internet Marketing” on 26 Jan (even if you can’t attend, by registering we will send you details of it).

Bringing a copyright infringement action to the US
It is important to bear in mind that the US has a system of registration of copyright and that in the UK the law does not require registration. But does the US recognise copyright from abroad which is established through other means apart from registration? According to a recent US ruling involving YouTube US District Judge Louis Stanton of New York wrote that the DMCA 1998 “bars statutory damages for all foreign and domestic works not timely registered” (see ruling here). Therefore, a UK claim of copyright will not lead to damages in the US. There is an exception, however, for live broadcasts such as sporting events. However, the same judge was of the view that one could still bring an “infringement suit […] based on an unregistered foreign [copyright work]”. In summary, a foreign action consisting of an unregistered copyright can be taken to the US but damages will not be available.

Bringing a copyright infringement action in the UK
If the owner of the infringing website is resident in the UK then UK jurisdiction would come into play. As with US copyright infringement first approach the owner of the site and then their ISP.The substance of copyright law derives from the Copyright, Designs and Patents Act 1988 (CDPA 1988)where it sets out the types of works that benefit from copyright, the question of authorship and the duration of copyright. Unlike the US, in the UK copyright is inherent in the creation – no registration is required. The display on a website of a copy of someone’s else work would be a basic infringement under the Act.

Remedies in the UK
As to the question of remedies available for the copyright owner, under section 96 of the Act, a number of options are available for copyright infringement.  These include damages, injunctions, accounts (accounts for profits).   In more detail, a damages claim will calculate the depreciation of the value of the copyright caused by the infringement. The Court is also able to provide ‘additional damages’ and in so doing will consider matters such as the flagrancy of the infringement and how much benefit the defendant received from the infringement. If the defendant has received a financial benefit from exploiting the copyrighted works then an account of profits may also be made to the claimant (however, either an account of profits may be claimed or damages, not both and ‘additional damages’ are not available for account of profit claims).

Copyright owners in the UK are showing a tendency to claim for damages for website related infringements. It seems that it will not be enough to simply remove the content from the website. Last year Getty Images, a leading provider of digital media, managed to retrieve damages from a removal firm JA Coles plus legal costs for using a photo from Getty on their website (See Outlaw article here). It seems that Getty has an automated method of spotting infringements (see blog article here) and a pro active attitude towards enforcing their copyright in their images.

Deciding what to include and what to exclude from a 30 minute talk on Reputation monitoring was not easy.  Here are my slides:

I opted to tackle the subject by first painting a negative scenario illustrating the difficulty in having something undesirable about yourself removed from the web. Then, I gave an example of the positive power of web 2.0 to catapult a business to success.  Dr Helaine Smith, a US dentist whose e-book Healthy Mouths Healthy Sex has been downloaded thousands of times, has quickly established her credibility as an expert, to the benefit of her dental practice.

My aim was to communicate that brand protection and brand promotion are different sides of the same coin.  If I were addressing an audience of larger brand owners, I would focus on brand protection.  For smaller businesses who may not yet have much of a brand to protect, I place the emphasis on using web 2.0 to build the brand, and attract business.  However, the same basic approach outlined in the talk is relevant whether promotion or protection is the focus.

I gave some pointers to beware of when seeking to protect brands online – specifically how not to fall victim to the Streisand Effect.  Use lawyers who understand the web, and can forewarn you of unintended consequences.

There was little doubt among the audience that social media is not a fad, and is here to stay.  All agreed that we are at the beginning of a revolution.  Clearly the message in this video about Social Media has therefore reached far and wide but as I really like it and it communicates the power of the web well, I am embedding it here:

So, social media is changing the rules in many industries, and I mentioned the marketing and advertising industry in particular.  New rules of ‘engagement’ on social media are replacing the old rules of so called ‘interruption marketing’.  My ideas are more fully expounded in the opening chapter of my new book, a book I am publishing gradually  through the blog as explained more here (When someone asked a question about protecting intellectual assets from copying and theft, I did explain that although I want to get content and ideas out into the public domain, I take care to protect some ideas by withholding them.  They will only be available to those who buy the book).

The rise of search engines as the first port of call for many of us looking for products and services, means there are huge opportunities for those whose content appears in front of their potential buyers at the time when these buyers are seeking it.  So for social media to yield benefits, it is important to understand your customers.  Otherwise, social media is unlikely to yield much business, and will just be a waste of time.  So a strategic approach is the aim.

By strategy I mean being clear about your positioning, how you differ from your competitors, and what you uniquely offer to the market.  This is a difficult subject, that many businesses could be grappling with for years.  It  is easier said than done. Generally, the narrower you go the more likely you are to identify your niche.  Then developing an understanding of potential buyers, and the words they use to look for solutions to their problems should be easier, as should keyword research.

Also anyone who wants to use social media marketing for their business should establish a blog.  It’s the most powerful way of producing content that potential buyers will be interested in.  However, to reap the benefits of blogging, the aim should be to produce remarkable content at least sometimes.  So, before beginning a blog, listen to other blogs, comment on some maybe, and then when you’re ready set one up.

Finally, I ended by discussing monitoring, by using Google alerts to keep track of mentions of your name, your keywords, and that of competitors.  The results could be received by email or, if you have a large number, sent through an RSS feed to Google reader - a free service.

There were a number of questions, including one by someone who had experienced a situation where an advertiser on Google had used their company’s brand name in the text of an ad, and sent the ensuing traffic to its own website.  This was felt to be deceptive, and wrong.

The topic of Google Adwords and Google’s policies has many dimensions.  The basic position is that Google’s policy will “not disable keywords in response to a trademark complaint” (see here). This is an overall policy that applies across the board. The legality of some of Google’s policies is awaiting the decision of the European Court of Justice. (In the meantime, the advocate general  has submitted an opinion as discussed here. We have also discussed Google Adwords in other blog posts here, here, here, and here.)  From this it may be guessed that this is an involved subject.

As regards the question raised at the event, Google will investigate the use of trademarks belonging to third parties in ad text. Google has made it clear that this will depend on the territory – for a list of the countries where such investigations will occur see link.  Also, the US policy is slightly more lenient allowing some ads to be ‘displayed with a trademark in ad text if the ad is from a reseller or from an information site’ (US Google trademark policy).  Not knowing more about the facts of the case raised at the event, I can’t comment further.  However, if further facts can be added here, or others have further comments, questions or remarks please leave them here.

So you may have made an online application to OHIM and you may be wondering why, after being informed by the EU registry (OHIM) that you’re trade mark has been published, you are still waiting for the certificate in the post. Don’t worry it’s not a postal strike, this time, that has delayed its arrival, instead, it is a rather discreet change of policy instigated by OHIM to ‘help reduce registration times’. Certificates were originally posted to applicants (Please click here )but since the introduction of the E-Certificate system, last Wednesday 9 December 2009, it is all done electronically. From now certificates are downloadable from the Online Access of Files tab displayed above trade mark results (click the icon indicated above to access the folders containing your certificate - please note that you may be required to set up a Mypage account first before being granted access to such files).

So the European Court did not think Interbrew’s interest in identifying and bringing proceedings against the source of the leaks so as to prevent further dissemination of its confidential information was an overriding reason in the public interest to justify ordering disclosure of sources.  In reaching its decision the court said that The conduct or purpose of the source, however mala fide, can never be decisive but will merely operate as one of many important factors to be taken into consideration.

This is an important decision.  It remains to be seen what this augurs for brand protection on the internet given that it will often be necessary to use Norwich Pharmacal orders to identify the source behind comments or reports.

Google News has been running since 2002 and is becoming a desirable platform for news enthusiasts. But while Google is taking from multiple sources, not all the sources are pleased with having their content effectively ‘scraped’. The economy is in a downturn and it is becoming increasingly difficult for newspapers, involved in physical distribution, to stay viable. One of the ways for most broadsheets and tabloids to increase their revenue is to rely on their online presence to generate further advertising revenue for the paper.

The contention, however, is that Google is generating its own publicity on the back of the tremendous cost involved in credible journalism. Also, a Google search of a topical news issue brings with it Google’s own advertising which runs alongside the newspaper article search results. There is also the claim against Google News that its multi sourcing discourages brand loyalty and validates the notion that journalism ‘should be provided for free’. Google on the other hand, takes a different stance, explaining that Google News and web search are a ‘source of promotion for news organisations, sending them about 100,000 clicks per minute’ (see Telegraph article here).

This is not the first time that news providers have been at logger heads with the search engine giant. In 2005 Agence France Presse sued Google for £10m for scraping its web content (see here). But this time around it seems that there is an underlying discussion that is being alluded to: Rubert Murdoch said at the beginning of November “I think we will [remove our websites from Google’s search index] but that’s when we start charging”. Newspapers are battling with themselves about setting up subscriptions and ‘pay-walls’ to seek direct revenue from their online content. According to the Independent last Friday, Rubert Murdoch’s  ‘sabre-rattling [is] a bid to corral the whole industry into shunning the search engine and adopting the pay model”. In any case the newspaper industry may be heading that way without needing any impetus: at the beginning of last week Johnston Press, owing 286 titles, decided to place the ‘online content of six of its local titles behind paywalls’ (See also Times article here).

Google has acknowledged the News Corp position and has revised the use of its ‘First Click Free’ system, which now allow users of Google News to click through to an article behind subscription walls, but then once the user is there he/she is unable to move to other links in the subscription area. Also, they have limited users from ‘jumping pay walls’ to 5 articles a day (please see here for details on Google News policy). This change of tone by Google may in part be due to its rival Bing (owned by Microsoft) entering talks with News Corp to pay for its news content on the condition that it ‘de-index’ its news sites from Google (Click here for FT article).

I have received lots of positive comments about the proposed book, and a few tips.  The result is that I will publish some parts of the book via this blog, and other parts of it will only be available to those who purchase the book.

Please do help shape the book by leaving me your comments here on the blog or by emailing me if you prefer.

Accuracy of labeling has often led to some interesting results. For example, the FSA states that in order for a food “to be called ‘chocolate’ [… it] must have a certain amount of cocoa solids”. Further ‘chocolate’ must not have more than 5% vegetable fat. This minimum standard had even partly affected household names, such as Cadbury’s, from selling their products in Spain and Italy, as the latter were alleging that Cadbury’s chocolate should be labeled as chocolate substitute not chocolate due to its high milk content. In 2003, the ECJ found that both Spain and Italy were breaching EU trade mark laws with such requirements.

So accuracy and compositional compliance in labeling is vital, but what of the marketing of foods sold across Europe. Obviously there are a number of ‘Euromyths’ that distort somewhat the EU standardisation effort. But that being said, for over 20 years, the marketing of foods in the EU has been a tightly regulated area where regulations go as far as stipulating the size and shape of 36 categories of foods. However, in the context of reducing bureaucracy, edible waste and being sensitive of the current economic crisis, since July of this year, new EU regulations have removed such stipulations for 26 of the 36 categories. The implication being that the knobbly carrot and bendy cucumber should now find its way back in our supermarkets and grocery stores (please see Stole Rives LLP Blog).

The Azrights Facebook page is now available at the user friendly URL: www.facebook.com/Azrights.