Key considerations for SEO contracts

Businesses invest heavily in the promotion of their brand and most will have some sort of web presence. A registered trade mark will provide protection against competitors exploiting an established reputation to draw customers or clients away from a business, although the top priority of many businesses will simply be to stand out from the competition.

This desire to stand out from the crowd, coupled with the value of a good web presence, has led to many businesses turning to search engine optimisation (‘SEO’) techniques in an attempt to rank higher in search engine pages. Countless SEO companies are thriving as a result, with some offering better value for money than others. When approaching an SEO company, a vital first step is to look into their reputation and previous work. Simply asking whether they are good at what they do and whether they can enhance your web presence are common sense questions, although these considerations are often overlooked.

The second key step is to ensure the relationship is backed up by a solid contract which takes into account the terms which have been agreed, any timescales and the client outcomes. SEO contracts take various forms and may be structured on the basis of:

  • The time spent on SEO;
  • The achievement of pre-defined results; or
  • A mixture of the two.

SEO companies will usually be keen to have the greatest possible level of freedom to work how they wish, whereas clients with a good understanding of SEO techniques may wish to limit these. It is often the case that clients will adopt a ‘leave it to the experts’ attitude, although it is important to note that certain techniques may result in search engines relegating a particular result. The contract should therefore take into consideration the possibility of the SEO techniques doing more harm than good and planning for these outcomes.

More often than not, SEO consultants will go to great lengths to point out (or at least bury somewhere in the contract) that SEO is not an exact science, that it is unable to take into account future changes in search engine algorithms and that there is no actual guarantee of a first page ranking (in essence, you are paying for expertise that should but won’t necessarily help your business). It is therefore essential to maintain a sense of perspective throughout. A high ranking is susceptible to fall with time, as more competitors crop up and search engine algorithms are tweaked.

Finally, the decision in Interflora Inc and Interflora British Unit v Marks and Spencer Plc and Flowers Direct Online Limited [2013] EWHC 1291 (Ch) should be of some concern to businesses paying for adwords. In this case, the High Court ruled that Marks & Spencer’s use of Interflora as a keyword to draw visitors to its own flower delivery service infringed Interflora’s registered trade mark. This is not to say that a third party’s trade mark must not be used as a keyword, although a prudent business would do well to take legal advice before embarking on this sort of action.

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