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Keywords said to violate trademark

A lawsuit involving alleged Net trademark infringement is perhaps the first to focus on the unauthorized use of hidden keywords used to identify Web pages.

A recent lawsuit involving alleged Net trademark infringement, among the first to focus on the unauthorized use of hidden keywords used to identify Web pages, is gaining attention from lawyers and site operators across the country.

The suit was filed in U.S. District Court in Colorado by the patent law firm of Oppedahl & Larson against a group that includes Advanced Concepts, which operates a Web site offering a "hot new virtual server with your own domain name," according to an exhibit in the complaint. (The URL for the server now directs users to a blank page.)

The complaint alleges that, without permission, Advanced Concepts used hidden keywords for Oppedahl's Web site to trick Netizens into "believing falsely that their Web pages are connected to the plaintiff's services, all in violation of Colorado law concerning the protection of trademarks."

It goes on to say: "Defendants' misleading use of a mark substantially identical to the mark 'Oppedahl & Larson' constitutes false advertising, false designation of origin, and false representation" in violation of the Lanham Act.

Oppedahl & Larson's services include intellectual property and Internet law, such as domain disputes. A lawyer for one of the defendants denied the charges.

Legal experts say it would seem to weigh the rights of free expression on the Net against protections provided under trademark law.

The suit focuses on the use of so-called metatags, which are underlying keywords used to help search engines identify Web sites. Search engines use small pieces of software called bots or spiders to automatically identify new Web sites using these keywords. In this case, the defendants allegedly embedded Oppedahl's name in the metatags for its Web sites so that Netizens who searched for the words "Oppedahl & Larson" would be drawn to other sites.

During the month of July, the law firm says it ran a search on the terms "Oppedahl" and "Larson" in the AltaVista search engine, which identified the Advanced Concepts Web pages as sites containing these terms.

The law firm viewed the Web pages to find the reference to "Oppedahl" and "Larson" but was unable to find them. It was, however, able to find them in the HTML source code, the suit contends.

"My name is being used to bring visitors to their site," said one of the firm's partners, Carl Oppedahl, about Advanced Concepts.

Larry Glazner, a lawyer for Robert Welch, the administrative contact for the defendant's site, responded by saying: "This is a frivolous suit." Glazner is seeking to move the case to Texas, where he says law firms aren't registered trademarks.

He also called the suit a "publicity stunt," because Oppedahl & Larson placed information about the lawsuit on its Web site.

Glazner added the attention caused the company to lose its contract with another defendant, MSI Marketing, which hosts the Advanced Concepts' Web site and provides Internet connectivity. "They hurt us," he said of the law firm.

Welch contends that only one person out of "thousands" has accessed the Advanced Concepts site through a search for the law firm. He also says he was never served with a "cease and desist" order from the plaintiffs.

"This has been a sideline venture, and it has turned into a sideline disaster," adds Welch, who is a dentist in Levelland, Texas. "I'm not out to infringe on somebody else's property or name."