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Can a link be cause for trademark infringement?

Trademark infringement is the misuse of another companies mark that causes consumer confusion about the source or sponsorship of goods or services. By contrast, many non-confusing uses of trademarks are fair and/or non-infringing.

If a website uses hyperlinks to mislead visitors into thinking the site is endorsed by someone whose trademark it uses, (e.g., “This page sponsored by XYZ Widgets, click here for more details”), the website might be found to infringe the trademark. A website merely linking to someone's web page, even if that page and its URL include a trademark (e.g., “We disagree with XYZ Widgets, click here to visit their homepage”), is unlikely to be trademark infringement.

Linking and the First Amendment

The First Amendment says that “Congress shall make no law … abridging the freedom of speech or of the press; or the right of the people peaceably to assemble…” The government and the states must meet a high level of scrutiny before restricting speech.

A hyperlinks refers to and describes the location of another web page. Because of the First Amendment the text of the link and the information linked to may be highly subjective. In conclusion, the Feds would have a very difficult time making a strong case against a link.

As many of you know, linking is a very important aspect of SEO and Internet marketing. It is also a tricky subject. We want other sites to link to us, but we should be wary of how they are doing it and what is in and around the link. Protecting your brand is critical, so always be looking for 3rd party statements.

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