How to Research Niche Questions for Better Reputation Management

June 17, 2016 · Filed Under Branding, Social Media · Comments Off on How to Research Niche Questions for Better Reputation Management 

Someone may be publicly asking questions about your brand at this very moment. Or someone asked it two weeks ago and got an answer (but not from you) and now this thread is ranking for your brand name.

Few people are buying from a company without trying to find the answers to their questions first… How reliable is your service? How fast is the delivery? What are the alternatives?

You should be there to answer those questions! Or better yet, all those questions should already be answered on your site for your potential customers not to have to search for the answers elsewhere.

The following research will be quite helpful in both of these scenarios:

  • For competitor research (For you to be aware of their problems and to be able to avoid them or offer their clients better solutions)
  • For your brand reputation trouble-shooting and monitoring

1. Research if Question-Related Google Features Appear for the Brand Name

Google is paying more and more attention to immediately guessing and answering users’ questions. Thus, they currently have two search features they are trying to accomplish :

  • Featured instant answers: A box featuring an answer to the query showing above organic search results (More on that here).
  • “People also ask”: Google is showing which questions users tend to type in the search box using the current query or before / after searching for that

Both features are worth looking into for competitor research and reputation management purposes.

The easiest way to do that is using SERPstat, a newer tool that has Google’s special features integrated into their keyword filters. Just type the brand name into their search field, navigate to “organic”, open the list of filters and select “Answers” and “Also ask” filters:

The search results will indicate queries triggering those chosen features with the icons:

From there, you can scroll through the brand-related search results checking the actual search featured elements to see which opportunity or challenge they pose for you or your competitor.

Search features for the brand name

2. Research Which Brand-Related Questions Users Type into The Search Box

Google Suggest is your invaluable source of brand-related queries you need to be keeping an eye on:

Google Suggest

Luckily there are tools that make finding and extracting question-related queries much easier. SERPstat does have that option too:


Another tool that makes this research huge fun by visualizing it is Answer The Public (Which I described here). Just type the brand name into their search box and the tool will find tons of questions containing that name:

Answer The Public

Here, I am showing part of the visualization for you to easier see the beauty:

Answer The Public

Now export these search results and start sorting them into “Create a FAQ page”, “Forward to the customer support team”, “Forward to the product development team”, etc.

Tip: There are lots of FAQ WordPress plugins which you can use to easily add a separate section covering all sorts of niche-related questions. Installing plugins is easy, so there’s nothing stopping you from moving forward with this idea immediately!

3. Monitor Brand-Related Questions on Social Media

Google queries only scratch the surface: Google and related tools record only most popular queries. User-generated content and real-time search will uncover more problems you should be handling.

Here are a few ideas:

1. Search and archive Tweets containing brand-related questions.

The search query to use:

“brand name” ? -infilter:links -http

? filters out tweets containing questions
-infilter:links -http excludes tweets containing links to only keep real conversations


Twitter Brand questions

Cyfe is a great way to create an archive of these search results to effectively collect them and use for customer service training or content inspiration.

Cyfe will start archiving tweets once you create a widget, so the earlier you do that, the older your archive will be.

Cyfe allows an unlimited number of widgets per dashboard, so you can monitor and archive questions around your brand as well as your competitors.

2. Bookmark and monitor niche-related reviews sites

In most niches there exist partially user-generated sites collecting user reviews and ratings. Examples:

  • [In SaaS niche] G2Crowd and its FAQ section on the listed service page
  • [In hosting niche] Sitegeek and its user q&a section on the listed hosting page
  • [In traveling] TripAdvisor and its q&a section on the hotel or restaurant page

Niche q&a

I cannot stress enough how important it is to monitor these sites and engage with the community. You need to be monitoring both your brand as well as your competitors!

Are you incorporating questions into your reputation management and competitor research? Please share your tips here!

KnowEm Social News Digest, Friday 2/13/15

February 13, 2015 · Filed Under Announcements, Social Media · Comments Off on KnowEm Social News Digest, Friday 2/13/15 

Welcome to the introductory KnowEm Social News Digest!  Every once a week or so we plan to send you the latest breaking news in Social Media.  There’s no shortage of changes happening in the social world, so it’s important you as a brand stay on top of it.  This week we have a bombshell from Pinterest, and some very interesting acquisitions by Google and Twitter.

PinterestPinterest bans all affiliate links, asks power users to monetize in other ways
from, February 12, 2015

As Pinterest’s monetization plans materialize, the social network is pulling the plug on affiliate networks. Pinterest warned select “power pinners” this evening that it will now “automatically remove all affiliate links, redirects and trackers on Pins.”


Twitter Acquires Niche, a Talent Agency for Social-Media Stars
from Wired, February 11, 2015

Twitter has agreed to acquire Niche, a startup that facilitates advertising deals for social media stars.


FacebookFacebook Adds Legacy Contact Option in the Event of Death
from Facebook, February 12, 2015

“Today we’re introducing a new feature that lets people choose a legacy contact—a family member or friend who can manage their account when they pass away. Once someone lets us know that a person has passed away, we will memorialize the account”


Google Acquires Photo Storage App Odysee, Is A Major Google+ Update On The Way?
from Search Engine Journal, February 9, 2015

Google announced Monday that it had acquired photo storage app Odysee. The app, which automatically backs up photos and videos taken on your smartphone, will shut down on February 23rd. As a result of the deal, Odysee’s development team will be joining the Google+ team, a move which has led to speculation that Odysee’s unique features will eventually be integrated into G+.


twitter-thumbWhy Twitter launched Curator, a Storify competitor
from Mashable, February 11, 2015

Curator makes it easier for media outlets to figure out which topics are popular. A search function sifts through tweets, vines and other data, with fine grained filters to narrow things down by location, word count, the feelings expressed in the tweet, and even by device.


Facebook Adds A New Way To Sell Items In Groups
from TechCrunch, February 10, 2015

“Facebook on Tuesday announced the addition of a new feature for Facebook Groups designed to make it easier for members of a “For Sale” group to list their items. The new “Sell” feature, which is now starting to roll out globally to more groups, will allow members to create a post where you can add a description of the item for sale, set a price and set a pick-up or delivery location.”


Valentine's DayKnowEm’s Valentine’s Day Sale is coming!

Stay tuned – tonight, tomorrow?  Who knows when it will start – check back and see when KnowEm starts offering 20% off some of our most popular packages this Valentine’s Day weekend!

5 Tools to Build Following and Increase Interactions on Google Plus

November 24, 2014 · Filed Under Social Media · 3 Comments 

Even though we’ve been all skeptic (quite rightfully so judging from a few of Google’s miserable attempts to enter the social media business), Google Plus is still alive and even thriving. In many industries (Travel, technology, business), it’s even rocking!

In my experience (and I am in one of the most popular Google Plus niches: Search and social media), Google Plus has a huge potential of connecting you to influencers and sending traffic to your site.

Here are a few things I’ve found:

  • Google Plus posts have a much longer life span than Twitter updates (especially for visual content)
  • Google Plus lets you better target your updates than any other social network (Thanks to circles which are surprisingly working)
  • Google Plus posts may give your Google search visibility (in personalized results: Your friends will often see you photo and your update when searching Google). This results in even longer life span: Sometimes I see my one-year-old update suddenly get new likes!
  • Google Plus can send a good traffic to your site (Not as good as Google, in some industries not as good as Facebook and Pinterest, but definitely better than Twitter)
  • Google Plus updates can rank in general Google search results that make their lifespa enormous. Sometimes I get plusses for Google Plys updates that date back to two years ago!

All in all, Google Plus is definitely worth investing your time into. And here are a few tools to help:


1. Google Plus /Explore: G+ Content Marketing

The first tool is Google’s own /Explore section that lets you explore Google Plus trending updates outside of your circles.

Most importantly, the section lets you monitor trending Google #hashtags: If you want a wider a reach for your G+ content, try using those hashtags from time to time to see much better interactions with your updates.

Monitor trending Google hashtags

You can also use the section to explore “Related hashtags” to embrace a more targeted approach to Google Plus update tagging.

Google Plus Related Hashtags


2. Circloscope: Manage Your Google Plus Circles Easier


This tool has really no alternatives. We talked to its co-founder at our Twitter chat and I started actively using the tool after that (Disclaimer: They gave me a free PRO account to play before the chat).

Some users have reported 1000% growth in followers & engagement after just a few weeks of using Circloscope. I personally got over 2k +1s on a blog post due in large part to using Circloscope smartly

Circloscope has a ton of features and I have yet to discover all of them but here are those I am currently using:

  • Discover and circle active users of any community (you can filter results to set the minimum number of followers)
  • Discover and circle users who have interacted (liked, re-shared, commented) with the particular Google Plus post
  • Discover and circle users who are following you (Who you are not following back)
  • Discover people who are not circling you back or who are not active on Google Plus for a long time
  • Discover and circle people who are going to the same event you do!

Circloscope Google Plus Circle Manager

Circloscope is quite powerful for free (the paid version also supports Google Plus business pages and some bulk actions). The only limitation is that you need to be using Google Plus to run it.


3. Cyfe: Monitor Google Plus Hashtags Easier


Cyfe is the only tool I know that allows to effectively monitor Google Plus hashtags. It allows to set up a separate dashboard that would be built of as many widgets you need. I have a separate dashboard for Google Plus searches:

Manage Google Plus hashtags

  • Monitor search for any or many Google Plus hashtags (Surprisingly, Google hashtags do actually work for visibility!)
  • Monitor search for any terms you care about (depending on your niche)
  • Whenever you see anything of interest: (1) Go to the update to like and better comment and (2) Add the author to circles. That’s a great way to discover new contacts and generate meaningful interactions!

4. Google Plus Ripples Bookmarklet: Participate in G+ Discussions around Any URL


This tool is browser-based bookmarklet that gives you an easy access to “ripples” (i.e. public shares of any URLs). While you can use Circloscope to add interacts to circles, this one lets you see and participate in various discussions around any URL:

Monitor Google+ Plus Ripples

You can use it to discover ripples for your own articles or for any other article where you think you can contribute to a discussion.

And yes, make sure to circle Google Plus users you discuss articles with!


5. CircleCount: Discover Trending Google Plus Communities


Participating in active Google Plus communities is one of the best ways to discover new connections, build traffic and build your Google Plus following. Google Plus does allow you to search for related communities but the search is very limited.

CircleCount ranks Google Plus communities by “fastest growing” which makes it a great discovery tool for active communities. I also like it because I can find some amazing groups there I wouldn’t have thought to look for, such as “Inspirational Quotes” and “Google Plus PRO” tips.

Manage Google Plus Communities

When you are establishing yourself within a community, don’t forget to comment on others’ posts as well. It’s a great way to build following!

Do you have any tools you are using to grow your Google Plus presence? Please share them in the comments!


About the Author: Ann Smarty is the Founder of MyBlogU, the free community allowing bloggers to brainstorm and participate in group interviews. Feel free to catch up with us on Facebook!

Google’s Transparency Report: A Step Backward for IP Theft and Copyright Protection?

August 28, 2012 · Filed Under Brand and Trademark Protection, Intellectual Property, Search Engine Optimization · Comments Off on Google’s Transparency Report: A Step Backward for IP Theft and Copyright Protection? 

When I first read that a new factor in Google’s ranking algorithm was going to be DMCA take down notices,  just like the rest of the Search Engine Optimization community I was a bit shocked and curious about how this would play out.  Could this mean a whole new round of fake take down notices to attempt to hurt a competitor’s rankings in the SERPs?  Take look at the increase in these notices and I will let you judge for yourself:

DMCA URL Removal Requests Aug 2012

In my opinion it looks like it has jumped a bit, no?  It appears possible that people in the SEO industry may have seen this as a way to gain an advantage over a competitor and fire off some DMCA reports.  All they would have to do is report a competitor and watch Google penalize the competition in the SERPs, in turn making their own sites rank higher.

The entire Google Transparency report and the information in it is interesting, anyone involved in copyright or IP law should take a look. After I reviewed the report there was one main point that struck me — the transparency.  But in this case is Google perhaps being too transparent? I was basically just handed a list of over 30,000 websites which have the possibility of containing pirated material and various cases of Intellectual Property theft.

The first place that drew this to my attention was a small list of some of the worst offenders, which included a link to the entire list:

Google's image for top offenders as of August 2012

A quick copy and paste into my browser bar of any of these sites showed they were either torrent related, streamed full movies or had file storage.  File storage that could contain anything from pirated software to navigation DVDs for various car manufacturers. (Disclaimer: This being an election year I would like to do my best to keep my own actions transparent; I will fully admit that I at one time tried a torrent, but I did not inhale.)

But what was the one thing missing from the list? Probably the epicenter of DMCA requests from anyone in the entertainment industry: Youtube.

This was first pointed out to me by one of my followers, Matt Mikulla, on Twitter.  I looked a bit deeper on the site and was able to find a disclaimer on the home page in a pull-down tab:

Google's DMCA Disclaimer

So Google is transparently admitting they are not including any of their own properties (e.g.,, and, which is okay, but they are also not including any data from mailed or fax complaints.  The only problem with this is anyone can submit a web form, but it requires a bit more transparency to make yourself less anonymous by submitting a written or faxed request.  I would have expected them to only accept written complaints they can verify for something that may effect their results algorithm.

Of course, there is the issue of publishing the list in the first place. By simply visiting any of the links on the first page I had access to more copyrighted material and Intellectual Property than an entire Best Buy™ legitimately sells in the first 5 minutes after they open for Black Friday.

Transparency on the internet has always been an issue that many companies struggle to address. There are so many I won’t even attempt to give any examples, especially since I would not want to single anyone out.  I applaud the effort at Google’s transparency, I only criticize the information they decided to disclose.  Personally I feel such a list has a potential to drive visitors to illegal sites; however, I also realize this list makes it easier for corporate legal teams to find and identify sites which other IP owners have already reported, and that they in turn may also want to report.  If you’re interested in protecting your brand’s copyrighted information, I would definitely suggest you review the list.

And there is the one issue that sort of makes the whole transparency list a little less transparent, the fact that Google decided not to include their own sites.  I’m sure they are appropriately policing their own site, after all, they should be equally protective of their own content on Youtube as they are of what they allow to appear in their SERPs in order to deliver quality results.  But I would be very interested to find out what percentage of that list was comprised of videos on Youtube …


You may (or may not) already have a Google+ Vanity URL!

June 1, 2012 · Filed Under Brand and Trademark Protection, KnowEm News · 5 Comments 

At KnowEm we’ve been trying for a while now to see if Google has opened up a way for anyone to grab a vanity URL from Google+.  After searching around Google and some other blogs and publications this morning it appears that you cannot claim a vanity URL just yet; however, if you had selected a vanity URL for your old Google Profile those have been grandfathered in to point to your current Google+  profile (here is an example of my own:

Google Plus LogoThe interesting part is that it appears Google may have been removing a lot of those original Google Profile vanity URLs from accounts which represent known brand or trademarked terms.  I personally knew of several Google Profile accounts that had trademarked terms in the URL that have since disappeared from search results (using the method that is described below).  Is this possibly because they are gearing up for another big midnight name claim like the Great Facebook Land Rush of Ought Nine?

So from reading around the interweb it appears that originally they were rolling this out and matching it to YouTube channels for the inevitable tighter integration of Youtube and Google+.  All of the reports that we found which contained links to possibly claim a vanity URL now simply return 404s or just redirect to your Google+ profile page.

As reported by TNW back in March, Google has already announced they are going to be launching a 3rd party commenting system and vanity URLs – the former perhaps requiring the latter, so the question remains when will they roll the new features out?  We’re not sure.  I have reached out to Google and asked if they have any response as to why we are able to see some users with old Google Profile vanity URLs and some without, and I’ll update this post as soon as I hear a response.  So if you’re not already be sure to follow us on twitter (@KnowEm) so you will be alerted to when this is launched in full.

Until then, you may or may not already have a username URL.  As far as we can tell it all depends if you created a Google Profile vanity URL when that product was still active.  To see if you do have one simply check out:<Enter either your Gmail address before the @ OR the custom URL you created with Google Profiles here>

If it forwards you directly to your Google+ profile then you are good to go!  Do you have a vanity URL? Have you figured out a way to create a vanity URL besides using a 3rd party service like we have previously posted about?  Let us know in the comment box below.

So what does this mean for business, trademarks and intellectual property? A lot. This is going to be a whole new can of worms just like the aforementioned Facebook claim. Large and small companies alike that originally thought networks like Twitter and Facebook were “just fads” and never attempted to claim their brand names in social media now have all kinds of headaches trying to retrieve them (in case you’re one of them, contact us and we can help).

For example, we don’t know if these two profiles are actually verified by the social media brands they claim to be, but here are two examples of names we have already found claimed: and  Can you find any others?

At KnowEm we look forward to a big name claiming rush like this one might become in order to ensure our clients’ Intellectual Property is immediately secured.  Until then, if you want to learn more about how you can protect your brand, trademark  or IP portfolio, check out our Enterprise Services.


Paul Krugman,Op-Ed columnist for The New York Times Hacked

August 25, 2011 · Filed Under Brand and Trademark Protection, Identity Theft, Online Reputation Management · Comments Off on Paul Krugman,Op-Ed columnist for The New York Times Hacked 

Paul Krugman is an Op-Ed columnist for The New York Times and writes that his social media identity was stolen on Google+.

He writes in the Times:

“Well, this is interesting. I hear that the not-so-good people at National Review are attacking me over something I said on my Google+ page. Except, I don’t have a Google+ page.This is the third incident I’m aware of — there may well be more — in which people are claiming to be me. There was also my nonexistent connection with, and at least one web opinion piece by someone claiming to be me (and sounding not at all like me)”

Slate reported Krugmans fake identity was writing insensitive commentary in regards to the earthquake:

“Yesterday, a Google+ account belonging to “Paul Krugman” posted this thought experiment about the earthquake.

People on twitter might be joking, but in all seriousness, we would see a bigger boost in spending and hence economic growth if the earthquake had done more damage.”

Obviously this makes Krugman look bad, whether he wrote it or not. Social media identity theft is messy. Individuals who want to maintain solid online reputations must first secure their names accross social media so imposters can’t mess with thier name. Brand managers at corporations must understand their brand is intellectual capital that when soiled affects them in ways we are only beginning to understand.

WARNING: New Gplus.To Site Not Affiliated with Google

July 5, 2011 · Filed Under Announcements, Identity Theft, Social Media · 6 Comments 

With the launch of the new Google+ Social Network last week there has been a landrush of (mostly techie) people to start trying out the new service. As with anything new and untested, always be wary of your privacy settings on the web, and especially to whom you’re giving your information.

Recently a new site launched called – this site has no affiliation with Google, no privacy policy, and basically no information about who owns it or how it uses your information. It is basically a URL shortener to provide vanity URLs for Google+ accounts. The problem is there is absolutely no verification in place. You can take anyone’s Google+ ID number, enter it in the box, and create a unique vanity URL for any name you choose – whether or not you have access to that Google+ account. This allows a huge potential for spammers to engage in Social Media Identity Theft.

There is an opportunity here for these site owners to start engaging in massive data mining because they offer no terms of service or privacy policy. So in addition to allowing anyone to capture anyone else’s vanity URL, they are also capturing everyone’s information for their own purposes. They can also redirect your URL wherever they want before sending you to your profile – Malware, tracking exploits, botnets, etc. You should be EXTREMELY cautious about using this service.

JULY 6 UPDATE: Someone associated with the site from Turkey got in touch with us and updated their site to include a simple About message which explains they are not trying to do anything malicious, and they are not affiliated with Google.  They also changed the appearance to make it look less like an actual Google page.  Wasn’t so hard, was it?

Google Announces Social Media to Influence Search Rankings

December 21, 2010 · Filed Under Search Engine Optimization, Social Media · Comments Off on Google Announces Social Media to Influence Search Rankings 

A few days ago Matt Cutts of the Google Web Search Quality Team announced that Google is going to start factoring signals from social networks such as Twitter and Facebook in their search engine rankings and results. This marks a shift from a video Cutts made in May 2010 in which he reported Google was not looking at social results.  Used heavily in real time search results in the past (such as in streaming tweets which have appeared above the regular results in the past), Cutts now reports that “[Google is] studying how much sense it makes to use it a little more widely within our web search rankings.”  He of course reminds us that pages which can’t be crawled, such as Twitter users which have protected their tweets or Facebook users with strict privacy settings, cannot be indexed by Google’s crawlers and of course will have no effect on rankings.

He reports that these social signals are used relatively lightly for now, but may begin to influence more heavily in the future as they gauge their effectiveness over time.  Something Google also wants to look at in terms of ranking influence is not just the number of social followers or friends a user may have, but the quality of those friends.  Obviously, just like they want to weed out spam and automated links to pages, Google also wants to weed out social accounts which are little more than bots or have artificially inflated their follower count.

So what does this mean to business and brand owners interested in leveraging social media for search engine rankings?  Really nothing, if you’ve already developed a smart and effective social media strategy. It just means Google is finally catching up to you.  If you haven’t begun to develop a social media strategy, then this should just be one more very strong reason to begin getting involved.

Portokabin, Google France and Interflora: The ECJ’s AdWords Trifecta

July 14, 2010 · Filed Under Brand and Trademark Protection, Intellectual Property · Comments Off on Portokabin, Google France and Interflora: The ECJ’s AdWords Trifecta 

Note from the Editor: The following is our first in a series of guest posts from individuals directly involved in Brand and Trademark protection on the web.  In it, Kelly Merkel, Esq, outlines some of the implications of the recent cases of trademark infringement in the use of keywords in Google Adwords.

The latest European Court of Justice (ECJ) ruling in a dispute about Google’s AdWords service and trademarks is instructive for multinational brand owners and their customers. In the matter of Portakabin Ltd., Portakabin BV v. Primakabin BV, the ECJ again addressed the liability of third parties who choose keywords that are identical or similar to a proprietor’s registered trademarks. Under the facts of this case, Portakabin Ltd., a manufacturer and supplier of mobile buildings, owns a Benelux trademark registration for the mark PORTAKABIN designating metal and non-metal buildings, parts and building materials. Portakabin BV is a subsidiary of Portakabin Ltd. that sells the goods designated by the mark PORTAKABIN pursuant to a trademark license from its parent (the parties hereinafter are collectively “Portakabin”). Primakabin, being unrelated to either Portakabin entity, sells and leases new and second-hand mobile buildings, including those manufactured by Portakabin.

Both Portakabin and Primakabin offer their goods for sale on their respective websites. In order to advertise its products, Primakabin purchased the keywords “portakabin”, “portacabin” and “portocabin” using Google’s AdWords referencing service. Portakabin brought an action against Primakabin in which it sought an order requiring Primakabin to cease all use of marks and/or signs identical or similar to the registered mark PORTAKABIN, including the purchased keywords.

In the July 8, 2010 decision, the ECJ affirmed Portakabin’s standing to bring actions under  Article 5 of Directive 89/104 to prevent third parties from unauthorized use of marks that are identical with, or similar to, the owner’s trademarks and used to designate goods and/or services that are identical to those for which the trademark is registered (consistent with the ECJ’s March 23, 2010 ruling in Google France, in which  Louis Vuitton pursued a finding of primary trademark infringement against Google for making keywords available to advertisers that included marks identical to Louis Vuitton’s registered marks). The ECJ, however, punted to the national courts the determination of whether or not there was, in fact, a use by advertisers of signs identical with, or similar to, trademarks as keywords for an internet referencing service which could be regarded as having been made in accordance with honest practices in industrial or commercial matters (as “use” is understood within the terms of Article 6 of Directive 89/104).

The ECJ further deferred to the national courts the question of a “legitimate reason” under Article 7 of Directive 89/104 by which a trademark owner is justified in opposing an advertiser’s use of a sign that is identical with, or similar to, the owner’s trademark (such as the impression of an economic link between the trademark owner and the advertiser or use that is seriously detrimental to the reputation of the mark). In assessing whether or not such a legitimate reason exists, the ECJ provides the following guidelines:

(1)    The national court cannot find that the ad gives the impression that the reseller and the trademark owner are economically linked, or that the ad is seriously detrimental to the reputation of that mark, merely on the basis that an advertiser uses another person’s trademark with additional wording indicating that the goods in question are being resold, such as ‘used’ or ‘second-hand’.

This is consistent with current commercial practices for traders in the second-hand market and further consistent with established principles of trademark exhaustion.

(2)    The national court is obliged to find that there is such a legitimate reason where the reseller, without the consent of the owner of the trademark that it uses in the context of advertising for its resale activities, has removed reference to that trademark from the goods, manufactured and placed on the market by that proprietor, and replaced it with a label bearing the reseller’s name, thereby concealing the trademark.

This opens up questions of unfair competition in a number of jurisdictions even if there is no literal trademark infringement.

(3)    The national court is obliged to find that a specialist reseller of second-hand goods under another person’s trademark cannot be prohibited from using that mark to advertise to the public its resale activities which include, in addition to the sale of second-hand goods under that mark, the sale of other second-hand goods, unless the sale of those other goods, in the light of their volume, their presentation or their poor quality, risks seriously damaging the image which the trademark owner has succeeded in creating for its mark.

This affects the predictability of an infringement ruling in a trademark owner’s favor in cases involving keywords and comparable internet referencing services. The judgments rendered shall be highly fact specific, and to an extent subjective in view of a national court’s own precedents and preferences.

The Portakabin decision, reviewed in concert with the Google France decision, leads the way for a highly-anticipated trifecta of related decisions upon resolution of Interflora Inc & another v Marks and Spencer Plc & another [2010] EWHC 925 (Ch). Google France established that an internet service referencing provider (such as Google) is not primarily liable for trademark infringement for simply sorting keywords that are identical with one or more trademarks (the organizing of the display of advertisements on the basis of those keywords does not constitute “use” of those marks within the meaning of Articles 5(1) and (2) of Directive 89/104). Portakabin further outlines the defenses that a reseller may have when that reseller buys keywords designating the second hand products and establishes advertisements on the basis of such purchased keywords. The crucial question is whether a third party’s ad ameliorates the primary function of origin that trademarks serve to consumers. What activity, or combination of activities, engaged in by an advertiser rise to the level of actionable “use”?

Further guidance on the overall advertiser activity that could constitute “use” under the Directives is expected in the pending case of Interflora Inc & another v Marks and Spencer Plc & another [2010] EWHC 925 (Ch). Initially presented with ten questions on the concept of “use” under the Directives, the Google France decision answered all but the following four queries:

(1) Where a trader which is a competitor of the proprietor of a registered trade mark and which sells goods and provides services identical to those covered by the trade mark via its website

(i) selects a sign which is identical (in accordance with the Court’s ruling in Case C-291/00) with the trade mark as a keyword for a search engine operator’s sponsored link service,

(ii) nominates the sign as a keyword,

(iii) associates the sign with the URL of its website,

(iv) sets the cost per click that it will pay in relation to that keyword,

(v) schedules the timing of the display of the sponsored link and

(vi) uses the sign in business correspondence relating to the invoicing and payment of fees or the management of its account with the search engine operator, but the sponsored link does not itself include the sign or any similar sign,

do any or all of these acts constitute ‘use’ of the sign by the competitor within the meaning of Article 5(1)(a) of  the Trade Marks Directive and Article 9(1)(a) of the CTM Regulation?

(2) Is any such use ‘in relation to’ goods and services identical to those for which the trade mark is registered within the meaning of Article 5(1) (a) of the Trade Marks Directive and Article 9(1) (a) of the CTM Regulation?

(3) Does any such use fall within the scope of either or both of:

(a) Article 5(1)(a) of the Trade Marks Directive and Article 9(1)(a) of the CTM Regulation; and

(b) assuming that such use is detrimental to the distinctive character of the trade mark or takes unfair advantage of the repute of the trade mark) Article 5(2) of the Trade Marks Directive and Article 9(1)(c) of the CTM Regulation?

(4) Does it make any difference to the answer to question 3 above if:

(a) the presentation of the competitor’s sponsored link in response to a search by a user by means of the sign in question is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor’s commercial network contrary to the fact; or

(b) the search engine operator does not permit trade mark proprietors in the relevant Member State of the Community to block the selection of signs identical to their trademarks as keywords by other parties?”

Both European and US-based multinational brand owners are encouraged to keep abreast of the Interflora decision. The  “trifecta” will be instructive for creating a global branding strategy in concert with teams of legal, marketing and IT specialists to enhance brand value and ensure resources are expended on true counterfeiting enterprises rather than the resellers that positively influence brand recognition within underserved market segments.

Kelly Merkel, Esq, is the Director of Patents and a Senior Associate at Wolfe, LPA, a certified woman-owned law firm specializing in intellectual property, new media and internet law and outsourcing counseling for corporate clients. Ms. Merkel wishes to thank Wolfe Associate Matthew Russotti, Esq. for his assistance in researching this article.