Visual Search Engines: A New Side Door for Competitors or a Better Infringement Detection Tool?

Text-based search engines, such as Google and Yahoo (remember Ask Jeeves?), were arguably the most important development leading to our now everyday reliance on the Internet.

The concept is simple: type a word or string of words into that inviting text box and instruct your favorite search engine to scour the Internet. The search engine does its magic and quickly displays a list of results, typically hyperlinks to webpages containing information the search engine decided was most relevant to your search. As web technology has progressed, search engines have become smarter and more robust. All major search engines can now, in response to text input, spit out a combination of web pages, images, videos, new articles, and other types of files.

Of course, IP owners and those interested in capitalizing on the IP rights of others have found many creative ways to leverage search engine technology to get their goods and services to the top of search engine result pages. These techniques have sparked an entire industry—search engine optimization—which has long been the subject of copyright and trademark litigation.

A Primer on Visual Search Engines

Given that nearly all consumers now have camera-enabled mobile devices, search engine providers have invested heavily in “visual” search engine technology. Visual search engines run search queries on photograph or image input, instead of text input. For example, a tourist visiting the Washington Monument can snap a quick photo of the famous obelisk and upload it into the visual search engine. The visual search engine will then analyze (using, for example, AI or other complicated algorithms) various data points within the photograph to identify the target and then spit out relevant information such as the location, operating hours, history, nearby places of interest, and the like. Google (Google Lens), Microsoft (Bing Visual Search), and Pinterest are all leveraging this technology.

Critically important for IP owners, visual search engines can be used by consumers to identify products and quickly comparison shop or identify related products. A golfer could snap a photograph of a golf shirt and ask the visual search engine to return results to find a better price on that shirt or to identify a matching hat or pair of pants. Similarly, a music listener could snap a photograph of an album cover and ask the visual search engine to return results for other music in the same genre that might be interesting to the listener. These are only a few examples of the powerful capabilities of visual search engine technology.

New Ways to Compete…and Infringe?

Visual search engines obviously require IP owners and their competitors to adapt and develop new search engine optimization techniques. Retailers may have to entirely reconsider the digital fingerprint of product photographs to make sure that the “correct” results pop up when a user takes a real-life photograph of their (or a competitors) products. Metadata and other digital markers analyzed by visual search engines will need to be carefully curated to assure accurate results and to effectively compete in the marketplace.

There is no doubt, however, that IP owners will be exposed to new and costly infringement tactics as a result of visual search engine technology. Competitors will try to closely imitate digital ad copy and product photographs (including at the metadata level) in order to achieve a prominent ranking in search results when a user searches for the “other guy’s” product. While such imitations may constitute classic copyright infringement, the means by which the infringement is accomplished, i.e. by designing ad copy to exploit visual search engine algorithms, is entirely new. Brand owners must work closely with search engine and e-commerce providers to understand how the visual search engine algorithms work and how infringers can potentially exploit loopholes. Don’t forget that search engine operators can also be liable should their technology knowing facilitate copyright and trademark infringement.

A Powerful Tool for IP Owners

On the other hand, visual search engines are a powerful infringement detection tool that all IP owners should have at their disposal. IP owners can regularly (and without cost) run searches with images of their own work or products as the “input” and use the visual search engine to identify any number of identical or substantially similar works or products existing elsewhere on the Internet. This gives IP owners, particularly those without large legal budgets, a streamlined, organic way to locate unauthorized reproduction or imitations within seconds. This seems particularly useful for graphic designers and photographers, although any IP owner can benefit from regular use of visual search engines as a brand enforcement tool. No one can argue with a cheaper, faster way to bring the fight to the infringers.

Image Source: Deposit Photos
Photo by wwwebmeister
ID: 13704539