A Review of Trademark Infringement in Meta Tags - Is It Possible?

Dec 9, 2004 - 2:11 pm 1 by

I have been following this topic for sometime now, as its relatively new area in the last year with several lawsuits popping up now and again of companies filing suit on the use of trademarked terms in meta-tags. Cre8asite Forums has some discussion on this, and its probably coincidence but SEW Blog had a little spot today on it as well for a case back in August I believe.

One of the members on Cre8asite was trying to determine what exactly applied to trademark infringement in the meta-tags. I guess first you must define a trademark before you can understand how its could be infringement upon. According to a post back in March Barry did it is:

Trademark infringement is use of another's mark that is likely to cause consumer confusion, or to cause mistake, or to deceive as to source, affiliation, sponsorship, origin or approval.

There have been some conflicting cases this last year that I will reference in regards to what the courts have decided was technically how the use was indeed infringing upon a particular trademark. Its also interesting to notice that these court cases can over run over a million dollars in court costs. So these suits are often taken at the expense of plaintiff or defendant, or both.

In November, a US district court judge has ordered a web site to remove references from its homepage to a competitor site, which included orders that concerned the abuse of meta tags. The use was skewing search engine results as the court had said.

The first UK case on trademark law and meta tag abuse was to look at the issue of trademark infringement by way of using meta tags in the case of Road Tech Computer Systems v. Mandata.

The court summarized in its decisions "that trademark is a trademark even if it can only be read by a computer."

However, another court in the UK had some different opinions in terms of what classified as a trademark infringement. They decided to consider the scope for which the term considering the use of the term in invoices, press releases and in advertising as compared to the use in a meta tag. Additionally the term of concern in the case was "Reed" and they also went on to say that the companies being sued used the term in a reserved fashion, along with other words such as �jobs� or �recruitment�. Which caused the company website to arrive at higher rankings, apparently above the company that sued them. The Court found no infringement in this case. Original case recorded can be found here.

Finally, one of the more recent cases this year was a biopharmaceutical firm that distributes plasma derivatives sueing its rival, alleging that it used the trade marked name �BDI Blood Diagnostics" in its meta tags. They found that there were revealing that trade marked terms relating to Blood Diagnostics in the source code and meta tags. There has not been a ruling on the case yet, but the company suing is seeking damages. The defendent is also wanting to get this case thrown out.

It seems based on the research I did above that the main cause for which most of these sometimes silly lawsuits get filed related to rankings in the search engines. In every article I reviewed they cited something to the same example "a new lawsuit was filed after Blood Diagnostics discovered that search engines were listing Florida-based Health Coalition�s web site in the top 10 of search results for Blood Diagnostics". Now I am not a legal expert in any way, but doesn't this sound a bit silly? I outrank you in a search engine, you sue me for using part of your name or some other industry specific term. I can understand the part of trademark use in terms of companies wanting to protect their name. But personally I think this is handled incorrectly. Its going to cost a good deal to take this to the courts, where instead they could spend it on hiring an SEO consultant or buying some text links to out rank their competitor. Shot, I could solve the ranking problem in an hour, and definately be way less expensive.

Sometimes what happens when a competitor beats you in the search engine rankings is you mount a counter effort to outrank him again! Its part of doing business on the internet, no body said you had to like it. Its cheaper, more cost effective, you can learn a lot along the way, you stay out of the courts, you don't make it public, and you ultimately win if you are determined.


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