Metatags—An Insidious Form of Trademark Infringement
One form of trademark infringement unique to the Internet involves the use of metatags. Metatags are key words used to direct Internet users to a website, and they are hidden to the normal website visitor. (They can be pulled up on most websites by right-clicking on the web page and selecting “View Source.”) Search engines compare the keywords in a search to the keywords in website metatags to create a list of search results. Metatags can be selected (i.e., they are not set automatically based on the content of a website), and savvy website owners will select their metatags to direct traffic to their website. For example, a real estate firm located in Montana might want to include the words “property” “sale” and “Montana” in its metatags.
Because metatags can be manipulated by website owners, and because there is no legal requirement that a metatag have any particular relationship to the website or the individual or entity that owns the website, it is possible for a website owner to include in its metatags trademarks that it does not own. For example, if a competitor wanted to direct traffic from your website to its own, the competitor might include your company name in its metatags so that individuals seeking your site through the use of a search engine will come up with the competitor’s site instead (or at least, the competitor’s site will appear higher than your site in the search results).
A body of case law has developed that addresses trademark infringement in the context of metatags. Generally speaking, it is illegal to use the trademark of a third party in a metatag for the purpose of diverting business from the third party. It is legal, however, to include the trademark of a third party in a metatag for other purposes, such as comment, criticism, and other “First Amendment” uses. Under the First Amendment, individuals have the right to express their opinions, and they also have the right to use trademarks they do not own to ensure that those opinions gain visibility among web users.
For example, a disgruntled customer may include the name of the company against whom he or she has a complaint in his metatags, a news service may include in its metatags the names of companies or products about whom it is reporting, and an individual may use the name of a company for whom she used to work in biographical information posted on her website. These types of uses of someone else’s trademark in metatags are considered fair use: as long as the user is not trying to confuse visitors into thinking that the website is affiliated with the trademark owner, there is no trademark infringement.
Initial interest confusion occurs when a consumer is directed to a site that is not owned by the trademark owner, even though it becomes immediately apparent to the web user that the website is not affiliated with the company for which he or she was looking. For example, if I search for “L.L.Bean” because I want to get some snowpants for my son, and I end up at the website for another outdoor clothing company (presumably because they included “L.L.Bean” in their metatags), I would immediately realize that I had the wrong site, but it might be just as easy for me to make the purchase from the website to which I was directed. Thus, the damage is done, even though I immediately realized the mistake. This type of initial interest confusion—where the purpose of including a competitor’s trademark in the metatags is to lure web users to the site under false pretenses—has been held by courts to constitute trademark infringement under the federal Lanham Act.
With the constant innovations in technology, however, no legal issue in this area remains “hot” for very long. No sooner had courts begun to develop a consistent and predictable body of case law in this area than Google changed its search algorithm to rely less on metatags and more on the number of sites that link back to a particular site. Thus, although trademark infringement in the context of metatags is still relevant, some creative website owners will find new ways to gain an unfair advantage at the expense of trademark owners. Our challenge as lawyers is to ensure that the law keeps pace with technology.