Q&A: Web Linking Liability

Q.  I’ve have a web site for my mystery novels, and I link to many other author and publisher sites.  I’ve heard there can be liability for trademark or copyright infringement for such links. Can this be true?

A.  There have been numerous attempts to hold linking sites responsible for copyright and trademark infringement, and defamation.  Linking may lead to claims of unfair competition and give rise to liability under the Lanham Act and state unfair competition laws.  Additionally, links may also give rise to allegations of other unfair trade practices, including false advertising.

The good news is that few of these lawsuits have been successful; on the other hand,  it is not necessary to win in court in order to claim victory.  Companies with deep resources and large legal budgets can intimidate small web sites.  Here are some guidelines to prevent trouble:

  • You should not use a third party’s logos, product designs, slogans or trademarks as the “click” word or image to their Web page since this could lead viewers of your site to believe that the site you’re linking to endorses or is affiliated with your site.
  • Don’t describe the Web sites to which you provide links. This will prevent the owner of the linked page from alleging that your description of the linked age was inaccurate or misleading.  Also, don’t use more than plain-text names (like “Trade Association Report”) for the click zone to link to another Web page.  In general, links to third party sites should be as simple as possible.
  • It also is better to link to a site’s home page rather than the internal page, because linking to an internal page has been the subject of lawsuits on two issues: bypassing advertising and the Web site’s “policies and terms and conditions” governing usage of the Web site that are often are only accessible from the home page.  The advertising issue is biggest – most big sites base ad revenue on the number of hits to the page that contains advertising.
  • If you do link to an internal page, you should consider contacting the owner of the linked page before initiating such link and obtaining permission from the owner of the linked page to link to an internal page and not the home page.  You also might, consider the option of entering into linking agreements. Generally, there are three types of linking agreements: mutual linking agreements, one-way linking agreements, and cross-linking or “co-branding”  agreements.  Mutual linking agreements are based on good will, and their purpose is often promotional or informational. Usually, revenues are not generated from such agreements.
  • In the case where YOUR Web site will be the linked page you may want to establish guidelines that specifically address the issues of (1) the use of your logos, designs, slogans or trademarks, (2) links to internal pages, (3) under what circumstances you will not permit links to your Web site, and (4) under what circumstances your permission is required before linking to your Web sit

© 2009 Daniel Steven