I just received a C&D...wasn't my fault.

I have a company in Florida and for the sake of anonymity, let's say I sell widgets. So my company is called Widget Express and back in 2009, I hired an SEO company to optimize my website. What it seems like they were doing is finding direct competitors and using their names in the title and tags of videos they posted.

There is a huge franchise in my industry that has been around for ages and I received a C&D with list two pages long of video sites where their name, "Widgets Fast" is used. They have the name Widgets Fast trademarked and I viewed some of the videos posted, and they were VERY misleading. Most of them tried to portray my company as Widgets Fast, rather than using them in a creative way or in the ad copy. One of them even said, "Widgets Fast Florida".

Here's the list of problems I have and I'm hoping someone here can give me a little advice.

1. The SEO company is no longer in business (go figure) and when I was finally able to reach the owner, he stated that he no longer had any of the username/passwords for any of their clients. Therefore we can't login and remove the videos ourselves.

2. It's virtually impossible to contact the video websites to ask them to remove the video since there is no proof it was for us. We have sent numerous requests to remove the videos or to provide the username/password. All requests have been ignored.

3. This company WILL sue...there's no doubt about it. I'm a small business owner in a small economy and having to dish out money for an attorney will shut me down. But my hands are tied because I can't cease and desist from something I have absolutely no control over.

Please help, I have no idea how to deal with this or even try to make things right. The SEO company got me ranked fast, but I never in a million years thought they were using illegal methods to get me ranked.

The best I can suggest for you, RockStrongo, is that you contact the Florida State Bar Association and inquire of them as to what free or low-cost legal assistance may be available to you for a trademark infringement action (http://www.floridabar.org). You really should have an attorney handle this for you.

What the SEO firm you hired did, apparently, was use your competitor's name, outright and in metatags on your site, to divert web traffic away from your competitor's site and to yours, increasing your ranking in a search. Any use of a competitor's trademark can lead to a trademark infringement suit, especially if there is evidence of consumer confusion.

Unfortunately, as owner of the business and of the website, you will be targeted as the primary infringer here (although the former SEO owner could potentially share in the liability). You can be held liable for infringing on the other company's trademark, even though the competing trademarks may not be readily visible on your site (in the metatags) and even if you were unaware of what the SEO firm you hired was up to (although you should have made it your business to know), because innocent infringement is still infringement. Damages still result.

For a lawsuit that dealt with this same trademark infringement issue, you may want to review the following 1999 case out of the 9th Circuit: Brookfield Communications v West Coast Entertainment, 174 F.3d 1036.

If you are unable to meet the demands of the other company, and it appears that you have been unable to, you could be looking at an infringement suit that could cost you all of the other trademark holder's lost profits, statutory damages of three times the actual damages suffered, plus all attorney fees and court costs.

Because the costs of losing a suit can be high, I recommend once again that you consult with an attorney in your area. The attorney may be able to assist with a settlement. And, because it was the SEO firm that created this problem for you, it is potentially possible for you to sue the owner of the SEO firm later. Since the SEO company is out of business now, however, any suit you pursue against its former owner may not be financially worthwhile. Again, the attorney in your area can advise you on this.

Good luck.