The metatag is a powerful browser tool for Internet advertising. The keyword portion of a metatag consists of hidden words that can be used to describe the contents of a web page. The metatags of a particular web site can be viewed by selecting the “view page source” or equivalent command in the web browser. The metatag is invisible to the website visitor, but is detectable by search engines, and is often used in the formula which determines search results for a particular inquiry.
Using Competitor’s Trademarks
Using competitors’ trademarks or other famous trademarks not owned by the company as metatags, to trade off the good will associated with them, is improper. As the Ninth Circuit held in Brookfield Communications. v. West Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999), using another’s mark as a metatag is somewhat like posting a billboard with another’s trademark directing traffic to one’s store, and is therefore actionable under the initial interest confusion doctrine. Cf. Bahari v. Gross, 119 F. Supp. 2d 309 (S.D.N.Y. 2000) (recognizing the Brookfield holding, but finding fair use and lack of confusion, and refusing to grant a preliminary injunction against metatag use).
As the Bahari case demonstrates, where confusion is unlikely or the metatag is used to accurately convey truthful information, use of the metatag and/or a famous trademark belonging to another may be permissible. To increase the likelihood such actions will be considered permissible, care must be taken to
- dispel any implicit affiliation with the famous mark, such as with a disclaimer
- use the trademark truthfully
- not use color schemes, logos, or other distinctive features of the competitor that are unnecessary to convey the truthful information, Playboy Enterprises, Inc. v. Terri Welles, 7 F. Supp. 2d 1098 (S.D. Cal. 1998), aff’d, 162 F.3d 1169 (9th Cir. 1998).
Metatags may also be used in connection with advertising banners. For example, certain key words typed into search engines may direct particular advertising banners to appear. However, it is improper to have one company’s advertising appear in response to a competitor’s name or trademark as the keyword. Similar issues apply when using another‘s personal name or individually recognizable term as a metatag. The aforementioned metatag precautions apply in these situations as well.
