Web-Tracking Data: An Under-Utilized Legal Resource

Most trademark lawyers are familiar with “cookies,” which are strings of text that a Web server places on a user's hard drive when delivering a requested Web page. As a result, the Web server that delivered the cookie, and sometimes other servers as well, can read the cookie when delivering another Web page to the same computer. This allows the Web server to associate certain activity on a Web site with that computer, and, presumably, its user. Among other things, cookies can reveal how users move through a Web site once they arrive. For a variety of reasons, often having to do with privacy, cookies have been the focus of much attention and are presumed by many to be the primary way in which Web sites gather data about their visitors. In fact, Web sites can, and do, collect significant amounts of information, including how a visitor arrives at a particular site, through other means. Many Web sites use a variety of technology to track the online movements of their visitors.

As an example, Web sites can engage in “referrer logging,” the technical term used for collecting the URLs that have sent visitors to a particular Web page. Businesses use this data to evaluate the effectiveness of their affiliate marketing or other e-commerce strategies. But this information can be equally valuable to the trademark attorney. These logs may reveal whether unscrupulous entities have registered domain names confusingly similar to a client's trademark, such as common misspellings or domain names that are composites of a trademark. For instance, The Hertz Corporation's discovery that many visitors arrived from www.herz.com, a Web site offering discount car rentals, could be probative of actual confusion in an action against the registrant of that domain name. (The examples in this article are not based on actual facts but are for illustrative purposes only. In fact, the Web site www.herz.com is inactive and the authors do not intend to imply that its owner has engaged in any misconduct).