To Link or Not to Link?

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Linking is the Internet's most popular way to access information, allowing users to directly connect from one website to another by clicking on an icon or text, called “hyperlink” or “link”. Simply by clicking on a link, a user reading an online page can instantly call up an entirely different page without having to go through the process of typing web addresses on the browser bar. However, there are certain pitfalls you should keep in mind when using hyperlinks for your business.

Hyperlinking: Is it a problem?

Any enterprise, even the smaller, uses Internet and websites to increase its commercial exposure and its potential customers. In order to describe and promote the products and services offered, it is common to insert hyperlinks on webpages driving users to contents available in external websites.

A simple hyperlink redirects a user to a new website or webpage whose address is embedded in the link. Hyperlinking to a webpage should be no more an infringement than giving a web address in paper form (as it would appear in a newspaper article). Giving users access to a web address is like providing a library user with the location of a book already in the library. The address itself is pure information, and it is not protected by copyright or by any other intellectual property right.

Nevertheless, different types of links can be created and in certain situations they can be used in a way that may violate copyright, trademark, and/or unfair competition laws.

Link types

  • simple hyperlink (or “simple link” for short) is a link to the homepage of the linked website. For example, www.iprhelpdesk.eu.
  • deep hyperlink (or “deep link” for short) is a link which takes the user directly into interior pages within the linked website, so that the homepage is avoided. For example, www.iprhelpdesk.eu/library.
  • framing is a link which allows a website to display a third party webpage, usually within a bordered area, within the linking website. The user will visualise the linked third party content without leaving the original website that will frame the linked website.

Hyperlinking: Are we at risk of infringement?

Copyright

Webpages include several contents such as images, music, texts, etc., which are potentially subject to copyright protection as long as they are original works. Therefore, when linking, it is usual to drive users to copyrighted contents available on third party websites. This practice raises some concerns from a copyright protection perspective.

Although no specific legislation exists to allay these concerns, two recent cases of the Court of Justice of the European Union (CJEU) gave useful guidance on how to distinguish a fair linking from a copyright infringement (cf. Svensson, (C-466/12); Bestwater, (C-348/13)).

According to the CJEU ruling, two different cases have to be identified:

  • hyperlinking to works already freely available on the Internet (e.g. a video freely available to the general public on a video-sharing website);
  • hyperlinking to works that are subject to restrictive accessibility measures and so accessible only to restricted users (e.g. subscribers of an on-demand Internet streaming media service).

In the first case, hyperlinking does not constitute copyright infringement.

In the second case, the link is able to circumvent restrictive accessibility measures, thus making available the contents to the general public. Such linking practice amounts to copyright infringement.

These considerations are valid for any types of links, no matter whether or not the users understood that they had been sent to another website or that the website is hosting the content itself (framing).

Recommendations:

  • Do not insert links to restricted access contents: it constitutes copyright infringement.
  • Be aware that a freely accessible content can become subject to restrictive accessibility measure at a later time. Therefore, it is advisable to periodically monitor the links provided on your webpages in order to avoid copyright claims relating to copyright protected contents.

Trademark

Trade mark infringement occurs when one party uses the mark of a third party in a way as to create a likelihood of confusion as to the origin of products or services. Such likelihood of confusion includes also the likelihood of association, i.e. where the trade mark use leads the consumer to think that the infringer is somehow associated, affiliated, connected, authorised or sponsored by the trade mark owner.

As a result, any kind of link that falsely leads the end user to conclude that such an affiliation exists between the website owner and the trade mark holder could amount to trade mark infringement. This circumstance can occur when an image link reproducing third parties’ trade mark is inserted to connect users to trade mark owners’ website.For example, the use of Ferrari’s prancing horse logo to link to the trade mark owner's website could constitute trade mark infringement if the consumer is likely to believe that the linked site (e.g. Ferrari official website) is somehow associated with the site providing the linking.

The same has to be said when the text of the link, instead of being written in regular font, adopts the distinctive typing of a third parties’ trade mark,.

The above mentioned risks are even stronger when the hyperlink is made via framing. In this case, the consumer could be more easily misled in relation to an existent economic or sponsorship relationship between the companies behind the two websites.

Recommendations:

  • Avoid using images or topography of links reproducing logos or fonts of registered trade marks: it could imply that the linked website is somehow associated with the website hosting the link.
  • To elude the risk of potential confusion, it might help including an EXIT screen indicating that the web user is leaving the website 1 and is being directed via link to the unrelated website 2.

Unfair Competition

A hyperlink might also give rise to liability in sofar as it is considered  as an unfair competition act. Although unfair competition provisions are provided by national legislations, it is possible to identify consequences of hyperlinking that might generally have relevance in this regard.

Indeed, any kind of link could be source of liability if:

  • it creates an unwelcome association that could harm the reputation of the linked website owner (e.g. a vegetarian restaurant would not appreciate to learn that its website is linked to a fur manufacturer website);
  • it  makes an unfair use of the content of the linked site leading to discredit of a product or a service offered by a rival (e.g. a food products manufacturer describes the features of its products on its website, including the sentence “elsewhere of inferior quality” whereby the word “elsewhere” forms a hyperlink to a direct competitor’s website);
  • it suggests the existence of an economic affiliation (e.g. the manufacturer of budget products refers in his website to high quality products offered by another producer, providing a link to the official website of the latter, taking an unfair advantage from the suggested association).

Furthermore, in so far as “framing” leads end users to believe that the material that they see originates with the framer, rather than with the website where it is published, this act may amount to unfair competition.

Recommendations:

  • Avoid inserting any type of link that could:
    • create unwelcome associations in consideration of the business run by the website owner;
    • imply a discredit of the products and/or services offered by a competitor;
    • suggest the existence of a false economic affiliation.
  • Include an EXIT screen that indicates that the web user is leaving the website 1 and  is being directed to an unrelated website 2 via the hyperlink. By giving proper attribution to the linked site and content, linking parties can avoid consumer confusion as to the source of the content.

Still in doubt?

If you are still in doubt on whether a specific linking practice could be source of liability, you can:

  • have a look at the linking policies often published in the websites themselves. Although they do not constitute binding law, they can inform you whether or not a particular linking practice is welcomed by a company;
  • consider the opportunity to negotiate a linking agreement with the website owner in order to avoid any risk of liability. Such contract, indeed, will stipulate the terms of the authorised linking;
  • contact our Helpline offering free-of-charge, tailor-made support on your individual IP questions and providing written answers within three working days.