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The Use of Trademarks in Meta Tags

Meta tags are words that act as an index to identify the content of a Web site for search engines, such as Google and Yahoo. There are description meta tags, which describe a Web site, and keyword meta tags, which are keywords about the Web site's content. Meta tags are typically hidden on a Web site and visitors to the site cannot see them. While meta tags had more significance to search engines in the past, they are still relevant to indexing and searching the Internet today.

Of course, the owner of a trademark is free to use that trademark in meta tags and in the content of his or her own Web site. Problems arise, however, when a person uses another party's trademarks on his or her site without authorization.

Unauthorized use of another person's trademark in meta tags could amount to trademark infringement. Under the Lanham Act, a person can be liable for trademark infringement if he or she, without the permission of the trademark owner, “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ….” 15 U.S.C. §1114(1)(a).

When some search engines look at a Web page's meta tags, the more often a particular term appears in the meta tags, the more likely it is that the Web page will turn up high on the list of search results. By using another's trademark in meta tags, a person is essentially directing visitors who enter the trademark owner's mark into the search engine to his or her site instead of the trademark owner's site. A person's motivation for doing this may be the hope that the visitor will simply remain on the site (and not go to the site he or she had originally searched for), read the content and maybe even buy products that are for sale on the site. While the visitor may recognize that he or she is on the wrong site and know that the site is not operated by the trademark owner, he or she may stay on that site and never go to the trademark owner's site.

Thus, if a person uses a competitor's trademark in the meta tags of her Web site as a way to divert potential customers from the competitor's site to her own, this will likely be considered trademark infringement. One of the elements of trademark infringement is that the use is likely to cause confusion. Courts have noted that using the trademark of another in meta tags satisfies this element because it creates "initial interest confusion." By using the trademarks of another in meta tags, the person wrongly benefits from the trademark owner's goodwill in the mark when people searching the Internet opt to visit that Web site instead of the trademark owner's Web site. The visitor may not be confused once he goes to the Web site and realizes it is not the trademark owner's site, but there is a possibility of initial confusion when the visitor looks at the list of search results.

There is a fair use defense to trademark infringement when the mark is “used fairly and in good faith only to describe the goods or services of such party, or their geographic origin.” 15 U.S.C. §1115(b)(4). If a person uses another's trademark merely to describe himself or his goods or services, there is no infringement. For example, a woman who was a former Playmate of the Year in Playboy magazine was permitted to use those marks in the meta tags of her Web site to index and describe the content of her Web site. See Playboy Enterprises, Inc. v. Welles, 7 F. Supp. 2d 1098 (S.D. Cal. 1998).

Another scenario in which a person may use another's meta tags is where Consumer A sets up a Web site that is critical of Company B. Consumer A might use trademarks owned by Company B in its meta tags in an effort to draw people searching for Company B on the Internet to his own Web site that criticizes Company B. This may not be considered trademark infringement because the likelihood of confusion element is missing. A reasonable viewer who looks at the content on Consumer A's Web site would not think that the critical comments about Company B were endorsed by Company B. In addition, Consumer A's use of Company B's trademark might be considered fair use because the meta tags identified the content of Consumer A's Web site.

In sum, it is permissible for a trademark owner to use his or her own marks in meta tags. However, if a person uses another person's trademarks in meta tags, this use may amount to trademark infringement unless it is considered fair use.

Learn More: Reasons to Contact an Intellectual Property Attorney

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Reasons to Contact an Intellectual Property Attorney

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