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Web-Tracking Data: An Under-Utilized Legal Resource

By Stephen W. Feingold, Gerry A. Fifer, and David H. McDonald

Several years ago, businesses like WebSideStory began offering dedicated Web-tracking services. These services can capture and analyze many aspects of Web traffic and create a multitude of customized reports. Such digital market research has become indispensable to many online businesses. (Its use has also raised many concerns about privacy, which are beyond the scope of this article.) On the other hand, it offers significant, yet largely unrecognized, benefits to trademark attorneys in their efforts to assist clients. This article briefly outlines some of the ways that trademark attorneys can utilize this data.

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.

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