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Trademark
Infringement through Meta Tags
At one time search engines only
searched the text of web-pages; now search engines are searching websites’
meta tags are well. The more
frequently a term appears in a website’s meta tag the more likely a search
engine will generate a results page that includes the website and the more
likely the website will placed higher on the list. There are two concerns with
searching the meta tags of web-pages:
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First, should companies be allowed to use a trademark or trade name of its
competitor in its meta tag field, thereby encouraging search engines to
select the its web page instead of the competitors or rank its web-page
higher than the competitors?
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Second, when search engines conduct a meta tag search and fails to provide
the meta tag data to the user, the user might assume that the site was
selected because it has a relevant relationship with the trademark.
When courts are determining
whether trademark infringement has occurred using a meta tag, the public policy
of trademark law is taken into consideration. Trademark law was created to
prevent competitors from intentionally confusing and misleading consumer. To
evaluate whether the use of a meta tag infringes upon trademark law, the courts
will evaluate the following:
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Are consumers misled to the competitor’s product?
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Has the consumer mistaken the competitor’s product for the actual trade name
product?
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Has the meta tag led consumers to abandon their search for the trade name
product and settle for the competitor’s product?
In essence, the courts are
attempting to prevent competitors from intentionally confusing and misleading
consumers. If the use dilutes the
trademark or trade name by Blurring
or Tarnishing then the use was
infringing. However, if the company can prove that its use of the trademark or
trade name was a Fair Use,
Nominative Use,
Collateral Use, or
Parody/Satire Use, then the use
was non-fringing.
Using trademarks in meta tags is not per se
illegal, it depends upon the circumstances:
In
Oppedahl & Larson v. Advanced Concepts, Civ. No. 97-Z-1592 (D.C.
Colo., July 23, 1997) there was evidence that the defendants used the
trademarked terms solely for the purpose of increasing traffic to its
website and that the trademarked terms had no relevance to the page.
Thus the court granted a preliminary injunction. Thereafter, the case
settled.
In
Eli Lilly & Co. v. Natural Answers Inc. (see also
summary), the court found that actual confusion is not essential to
finding a likelihood of confusion, intent to cause confusion is
sufficient.
In
Playboy v. Wells (see also
summary), the court found that the defendant, a former employee of
Playboy, used the trademark in a descriptive way on her website and had
no intention of benefiting from Playboy’s goodwill. The court held that
the use was fair.
In essence, determining whether
the use of a trademark in a meta tag is infringement depends on whether the use
causes or intends to cause confusion. Confusion is not intended or created if a
former playboy uses the term “playboy” in the meta tag of her website. However
if a web site owner uses a trademark of which is has no association and uses it
with the intent to generate more website traffic or cause confusion, such use is
infringing on the rights of the trademark owner. While confusion is a key
consideration, the courts also evaluate whether the use of the trademark dilutes
the trademark (see Trademark Dilution).
REFERENCES:
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Oppedahl
& Larson v. Advanced Concepts, Civ. No. 97-Z-1592 (D.C. Colo., July 23,
1997).
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Playboy Enters.
v. Terri Welles,
Inc., 78 F.Supp.2d 1066 (S.D. Cal. 1999).
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Eli Lilly & Co. v. Natural Answers,
Inc., 86 F.Supp.2d 834 (D. Ind., 2000).
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Danny Sullivan,
Meta Tag Lawsuits, at
http://searchenginewatch.com/resources/article.php/2156551 (Apr. 21,
2004).
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Matt Naeger,
Searching for Trademark Protection, at
http://www.impaqt.com/news02.html (Sep. 9, 2004).
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