Mind Your Metatags

Recently, both Legal Literacy and Wisconsin Business Law and Litigation have blogged about the dangers of including another’s trademark in your website’s metatags. (If you’re unfamiliar with metatags and want to see some for yourself, click on “View” [in the Firefox or Explorer browsers], then “Page Source” or “Source.”)

Believing that search engines use metatags to direct web traffic, businesses will sometimes place in their own metatags, the trademarks of a competitor — hoping that internet searches for the competitor will lead consumers to their site instead. There has been much litigation about whether this practice constitutes trademark infringement.

Most recently, the First Circuit Court of Appeals held that it does. Venture Tape Corp. v. McGills Glass Warehouse, 2008 WL 3959997 (1st Cir. Aug. 28, 2008).

A leading thinker on this issue is Professor Eric Goldman (formerly a Marquette Law professor). For years, Goldman has been asserting that search engines actually ignore keyword metatags, and therefore that because metatags are technologically irrelevant they should also be legally irrelevant. Goldman also argues that the practice of including a competitor’s trademark in one’s metatags does not constitute a “use in commerce,” causing the practice to fall short under the test for trademark infringement.

Although Professor Goldman makes some very compelling points, they have been largely ignored by the courts. So — for better or worse — there is still a very significant risk associated with the practice of sneaking a competitor’s trademarks into your metatags.

Even Goldman agrees: don’t do it.