Meta tags are of limited significance today. They are used to describe website content for the benefit of search engines. Most websites will contain a meta description tag and a meta keywords tag. The description tag is used by several search engines (Google is a notable exception) and the keywords tag is respected by very few. This is largely down to historical abuse of meta tags, where site operators frequently misled search engines to attract traffic. Search engines got wise to this several years ago.
Notwithstanding the decline in the significance of meta tags, if you find that a rival has included your trade marks in his meta tags, you may still have grounds for action, albeit these grounds are limited.
In the UK, the most important guidance on meta tag abuse came in the Reed case in 2004. Three English Appeal Court judges ruled that recruitment site totaljobs.com had not infringed a trade mark that had been used as a meta tag in the source code of the website.
The case confirms that the use of a registered trade mark or a similar mark in a meta tag does not necessarily constitute trade mark infringement or passing off.
The case concerned the use of the mark Reed Business Information in a meta tag on totaljobs.com, a site which made no visible use of the word Reed apart from in a small copyright notice at the foot of the homepage. The mark Reed was a registered trade mark of Reed Employment Limited. Given that the mark Reed Business Information was deemed only similar to the mark Reed, confusion had to be established to prove trade mark infringement. It was found that no such confusion occurred simply because of the existence of the word Reed in a meta tag on the totaljobs.com website.
The totaljobs.com website never appeared above the Reed Employment site, owned by Reed Executive plc, when the search term “Reed Employment” was used in search engines. The reasoning in the case places great emphasis on the “clutter” of irrelevant sites, which often appear in search engine results. Further, Reed Executive and Reed Business Information had physically traded in the UK for many years in different fields without any confusion. Justice Jacobs also held that the mark 'Reed' was an inherently weak mark, given it was a well known surname and thus effectively found that the latitude for confusion between the two Reed marks was reduced as a result.
The case indicates that the use of ‘invisible’ trade marks in the form of meta tags cannot be considered in isolation from the associated ‘visible’ uses of the same trade marks on websites. If a defendant can show that as a result of their visible use of terms or trade marks that purchasers are not being confused into thinking that they are dealing with the trade mark owner, then trade mark infringement appears hard to establish. However, it is important to note that in Reed, Jacobs found that the Reed Employment and Reed Business Information marks were 'similar' and thus confusion had to be proven to establish infringement. Jacobs was at pains to point out that if he had found the marks to be identical where confusion does not need to shown to establish infringement he may have come to a different judgement.
Similar conclusions appear to have been upheld in various US cases. The US Court of Appeal for the Seventh Circuit in a case concerning the use of the trade mark COPITRAK emphasised that use of trade marks in meta tags was not objectionable per se: “It is not the case that trade marks can never appear in meta tags, but they may only do so where a legitimate use of the trade mark is being made”
Although the Reed and Copitrak cases imply that the use of a competitors trade mark in a meta tag is fair game, this would be a rash conclusion to draw.
In the words of another judgment, involving lingerie seller Victoria’s Secret, if a defendant is using a meta tag term in a “bait and switch” scheme to lure users who are searching for the plaintiff’s goods, then infringement and passing off is likely to be found. It was very apparent that the Reed case did not concern the deliberate use of a trade mark of another trader to “lure” traffic to a particular website.
If you find a competitor is using your brand in a meta tag with the deliberate intention of drawing custom to their website at your expense, then you may have a cause of action.