A competitor is attacking your brand in organic search: how to respond?

Maître Meillassoux, what defense strategy did you put in place for your client?

After carrying out the preliminary research needed to confirm that an “SEO attack” had indeed been carried out against our client, we conducted some investigations of our own and were able to find suspicious traces, the actual existence of fraudulent “backlinks” and, to our surprise, the fact that their author had not only failed to hide it but even cited his identity on certain backlinking sites as the creator of the links. These infringing links have the effect of distorting competition on the networks. While one may accept the fact that paid search advertising can be used, it is shocking that a competitor can distort, in a way that is initially undetectable, the organic search rankings of businesses by using, to do so, their trademarks and any other distinctive sign, such as their trade name or their domain name. We therefore sent formal notices to cease these practices to our client’s competitor, to its service provider, and to the various service or technical providers that could be involved, such as the backlinking sites or their host. Despite our demands for immediate removal by all parties, they stalled. The harm is significant, all the more so because the removal of the illicit links, assuming it can be obtained, does not de facto lead to the deindexing of the competitor’s site in organic search. To achieve that, technical measures must be implemented whose effects are limited and only take hold over the long term. We were therefore forced to sue these companies for infringement, unfair competition, parasitism and on the basis of unfair commercial practices before the Tribunal de Grande Instance de Paris, and the case is currently ongoing. On the merits, there are few if any cases that have ruled on the specific issue of “backlinking” processes, which make it possible to distort, through fairly easy-to-implement technical means, organic search results (results that are supposed to be relevant to the query). This issue is different from that of paid search (commercial ads), which has given rise to abundant litigation and, ultimately, to questionable decisions from the Court of Justice of the European Union (CJEU). The Court has indeed ruled that the owner of a trademark cannot prohibit its use by unauthorized third parties in paid search services, such as AdWords, unless that use undermines the trademark’s function of indicating origin (CJEU, 23 March 2010, Google and Google France) or its investment function (CJEU, 22 September 2011, Interflora). The CJEU also ruled that, by lending its assistance to such practices, and even though it auctions the registered trademark to the highest bidder as a search referral tool toward sites other than those of the owner, the liability of a paid search service provider (in this case GOOGLE) could not be engaged unless it were demonstrated that it had taken an active part in drafting the illicit ad or that, once informed, it had not acted diligently to make it unavailable. With this decision, the CJEU therefore held that an online paid search service provider was a host, which, as we know, benefits from a specific liability regime. Some were then able to write that the CJEU had broken the monopoly of trademark law. Even if this is not entirely true, it did restrict its scope, in the interest of promoting competition. When it comes to backlinking, the consumer is deliberately misled about the results of their search. They believe their query will let them access answers that match their request. But their search is skewed by the action of unfair competitors, who seek to profit from the reputation of the trademark owner in order to unduly benefit from better positioning and therefore greater visibility on the Internet. The aim is therefore to protect the interests of the businesses that are victims of these acts, but also those of Internet users looking for relevant and objective results. You engaged us to carry out a technical audit; what did it bring you? As lawyers specialized in new technologies, we are often confronted with these issues. But we do not have the technical means to collect technical evidence of the illicit acts thus committed. This is where your company Semji, which has developed software solutions that make it possible to very quickly collect the illicit links and other backlinks from the depths of the Web, was of great help to us. In this case, only a specialized company, equipped with the right tools, could provide us with the technical evidence of the existence and scale of the organic search fraud. We had discovered a few links, but your tools allowed us to observe an offensive of more than 700 backlinks using our client’s name as their “anchor” or reference point, and in total, several thousand backlinks diverting to its site the searches made on the names of other competitors. It was therefore indeed a systematic fraudulent action, with clearly established unfair intent, which fully justified our legal action. In order to have the English competitor’s “backlinks” formally recorded, we called on Maître Chavaudret, a judicial officer. Maître Chavaudret, what were the particularities of this audit? As with every official report, and in particular those I produce on the Internet, I take care to perfectly retrace in the official record the path used to establish proof of the alleged fact. In this case, without a specially designed methodology, recording the existence of 700 backlinks would have meant recording 700 pages, then their sources, and within those sources, the disputed anchors. I never give up, but the summit was far off. You suggested that I use the Google Doc tool in order to extract, thanks to a suitable spreadsheet function, portions of code from the listed pages. This method was both transparent, since I was using a free tool, and systematic. It made it possible to obtain the desired result quickly and conclusively. Coupled with occasional, random verification of the accuracy of the results obtained, I was able to produce a highly technical report, which took me back to my first algorithmic loves. A return to my roots, in a way. Maître Meillassoux, what would you recommend to a company that is the victim of an SEO attack on its brand? In our view, it is essential to be very proactive and to act quickly. In a globalized economy, protecting your visibility on the Internet is a vital necessity. We favor an amicable approach with the authors of the backlinks, if they are willing to cooperate. But we need to be serious about the question of compensating for the harm. Backlinking has lasting effects, even once the backlinks have been removed. The unscrupulous competitor’s site can continue to hold a high organic ranking on its competitor’s brand for several months. First of all, it is therefore up to the offending company to fund the technical measures to remove the backlinks, or “return links,” but also to counter their effects after the fact, in particular by putting in place new links that will optimize, in the opposite direction, organic search results, but this time in favor of the victim company. Next comes offering fair financial compensation. There again, a report produced by a specialized provider makes it possible to measure the scale of the damage. Often the harm is underestimated and companies do not yet invest in the technical means to trace fraudulent actions on the Internet (technical difficulty and the cost of collecting the evidence), and there has not yet been much case law on the matter. This is changing. There is a growing awareness of the importance of the image conveyed online. The harm can be considerable, and impunity risks encouraging unfair competitors. We therefore hope for an exemplary decision and for advances in the law on this matter. An end must be put to these practices, which distort Internet users’ right to information, which undermine the distinctive signs and brand image of the victims, and which allow third parties to unduly profit from their reputation and their online communication investments.