In a world where marketers are increasingly concerned with how brand name and trademarks are used in the realm of search we find various legal “best
practices” emerging… for both Web publisher/affiliate partners and marketers.  Caught in the middle of the “typosquatting" issue—and so far avoiding legal troubles yet looking mighty foolish—are the affiliate networks (this time allowing typosquatting affiliates to send $190,000 in sales to Lands’ End, an act that violates its own rules aside from Lands’ End’s).

In the past I’ve taken note of typosquatting-affiliate cases in the European sphere where Web affiliates have prevailed over retail powerhouses like Tesco—proving that if the marketer and its affiliate network understand and, therefore, endorse what was going on they cannot change their viewpoint (on shady practices targeting consumer mis-spells of their domain name) with the wind and recover commissions from affiliate networks and/or Web affiliates.  In short, if you willingly let affiliates, under the watch of uncaring affiliate networks, do “the nasty” to you over a significant period of time they’re entitled to commissions.

In the latest case of typosquatting (thanks, Ben Edelman, for bringing it to my attention) we find Lands’ End attempting to use the Lanham Act (Trademark law) and Wisconsin State law to do battle with an affiliate who acquired lnadsend.com, klandsend.com, andsende.com, landdend.com (among many others) so as to place affiliate-referral cookies on consumers’ browsers that resulted in an illegitimate commission being issued through its provider, Linkshare Corporation. 

Why Is This Important?
This case demonstrates that while typosquatting may not be “false advertising” in the eyes of a judge, typosquatters can still end up in hot water.  The court is clearly concerned that affiliates profit through keeping their activities secret, while leveraging the marketer’s famous trademark.  The Anticybersquatting Act provides for substantially statutory damages, and if Lands’ End can prove direct harm, it could receive contract damages as well.  All in all, it’s a bad outcome for cybersquatters.

The Best Practice for Retailers
The Lanham Act failed to provide protection to Lands End (as “consumers were not in any relevant sense confused by the relationship between Lands’ End and the affiliate“ nor was the affiliate attempting to use the domains to profit through selling goods); hence, the best way to move forward against naughty affiliates is through breach of contract and fraud claims.  Details on the Lands’ End v. Remy affiliate typosquatting lawsuit provide further insight.

I have a very difficult time seeing how Lands End will love its affiliate marketing channel so much that it’s willing to let things like this go on moving forward—with any similar vendor let alone Linkshare.  Then again I’m proven wrong each day when I rise for my morning coffee and trench-level marketers continue to bury heads in sand and protect what they know is not a perfect marketing channel (rather than fix it).