by David Barnett and Richard Ferguson
Introduction
A recent report by the EUIPO[1] looks at the use of search engines in directing traffic to websites featuring content which infringes intellectual property (such as counterfeiting and piracy issues), and outlines best practices which could be adopted. In this article, we draw out some key points from the report and consider some of the implications.
Overview
Search engines remain one of the key routes through which user traffic is driven to websites, on the basis of URLs returned in pages of results returned in response to search queries. In general, search results can be categorised into two groups: organic results, which the search engine has deemed relevant to the query (with an associated ranking) on the basis of an analysis of the content of the webpage (and, potentially, other factors such as site popularity, numbers of 'in-links', speed of page loading, age, etc.), and paid-for results, for which the beneficiary site has paid the search engine for its inclusion in the results (and for which the presentation to users can also be affected by other factors such as their search and browsing history).
A key point to note is that the owner of a website can aim to influence (boost) its ranking through a range of techniques described as Search Engine Optimisation (SEO) and Search Engine Marketing (SEM). SEO methods include techniques such as the inclusion of relevant keywords on the website or in its source code, copying content from legitimate trusted websites, or presenting a view of the site to a search engine which is different to that seen by a manual user. The latter point can be achieved in a number of different ways, including the use of the 'Robots Exclusion Protocol' or CAPTCHA codes to prevent analysis by search-engine crawlers, and modification of initial site content after indexing or validity verification. Other misdirection techniques can include the use of re-registrations of expired domains (thereby taking advantage of their former content or trusted status), use of brand variations (typos) designed to capture mis-typed queries, or posting of links in online forums.
The risks arise when these techniques are utilised by the administrator of a website which is in some way infringing, therefore boosting the ranking of the site to users searching for legitimate content. This is a significant issue, with almost half of all users purchasing a counterfeit product online having started with a search engine query featuring the brand in question, and over a quarter of visits to piracy sites originating from search engines.
The report considers some of the techniques which can be used by brand owners to mitigate the use of illicit SEO practices (i.e. traffic misdirection) - such as proactively searching for content copied from official sites - as well as some of the difficulties - such as the fact that in many instances, search engines will personalise results to the user, meaning the presentation of pages of results cannot always easily be replicated. It is also noted that, for search engines looking to address these issues, a balance needs to be struck between limitation of liability, and restriction of fundamental rights and wrongful content removal.
A number of good practices for search engines are suggested, including:
- (For organic results,) the introduction of policies to prevent the prominent listing of IP-infringing content, including: the blocking of infringement-related terms from auto-complete functions (i.e. suggested searches); result demotion or delisting in response to blacklisting, legal or administrative decisions; and tools to identify spamming and other practices constituting policy violations (such as the use of SEO techniques on an illicit basis).
- Offering options for the effective reporting of IP infringements and subsequent actioning, including the use of trusted flaggers and the publication of transparency reports on violations.
- (For paid-for results,) terms and conditions prohibiting IP infringements, improved detection of violations, and robust 'Know Your Customer' initiatives.
Discussion
The best practices proposed in the report address a cross-section of abuse - but essentially propose addressing the issue by muting the underlying infringement through the targeting of traffic originating via search engines as intermediaries. Whilst this can be useful in reducing the noise and surface-level accessibility to consumers, rights holders may need to engage directly with infringers, especially where the content is not obviously pirated nor the goods counterfeited. Developing a brand protection 'playbook' to address the different issues faced through a range of possible remediation pathways is important in ensuring that monitoring and enforcement is proportionate to the issue at hand.
That said, a successful implementation of some or all of the good practices proposed in the report could have significant implications in a brand-protection context, both from the point of view of limiting the visibility of infringing content (and therefore its levels of visitor traffic and the associated revenue losses for brand owners), and in increasing the options for takedown and enforcement, potentially in lower-cost and more efficient ways. For example, it may be significantly preferable to require the search-engine delisting or demotion of an infringing site through some kind of 'fraudcasting' product or service than it would be to launch a time-consuming and costly domain dispute procedure, in a case where a significant proportion of traffic to the infringing site originates from search engines.
Reference
This article was first published on 15 May 2025 at:
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