What is the connection between meta-tags and brands?
What a meta-tags?
Meta-tags are computer codes invisible to end-users which are used to describe the contents of a web site. These codes are part of the programming language (known as Hypertext Markup Language, or HTML) of the Web.
Meta-tags held the computer user to locate web sites via search engines (such as Alta Vista). Search engines crawl across the net searching for references to key words chosen by the computer user. The search engines look for these key words in domain names, web site text and meta-tags, and then catalogue the results in an index. The greater the number of relevant key words (and often a key word in a meta-tag will be given greater priority than a key word found elsewhere), the more prominent web site will appear in the list of "hits".
For example, we could "draw" a search engine to this web site by using meta-tags such as "marketing law", "lawyers", and "Osborne Clarke" (although all of these appear in the web site text anyway).
What is the connection between meta-tags and brands?
Meta-tags that "draw" a search engine to one web site may include brand names or trade marks of a competitor. The result is that a computer user may be attracted to the web site of a competitor by that web site using someone else's trade marks. For example, we could "draw" a search engine to this web site by using meta-tags that included the name of another law firm (although of course we don't!), to "trick" a search engine into identifying our web site, when in fact a computer user was looking for a competitor's.
What legal issues arise from the use of meta-tags?
The question is whether the use of someone else's brand names or trade marks as key words in meta-tags constitutes trade mark infringement or passing off. The problem is that the meta-tags are not visible to end users, so the question is whether it can be said that they have been confused.
Why should a brand owner be concerned about the use of his brand names or trade marks as meta-tags in a competitor's web site? Because the competitor could be misappropriating your goodwill and diluting the value of your brand. It is possible that a computer user searching for your own web site could be diverted to a competitor's web site, therefore loosing you business.
What do the US courts say about the use of someone else's brand names or trade marks as meta-tags?
The use of others' brand names or trade marks as meta-tags have been particularly prevalent in the US. A string of recent US cases have confirmed that the use of someone else's brand names or trade marks may cause confusion sufficient to be actionable. It is possible that such practices can therefore be stopped. The US courts have concluded that the end users would not be confused in the narrow sense (for example, because both side's web sites will appear in the list of "hits" and the end user will then be able to differentiate between the two), but that such use of someone else's brand names or trade marks is contrary to the US doctrine of "initial interest confusion"; because the computer user's interest is diverted and traffic flow to a competitor's website may be increased.
However, the US courts have been careful to distinguish where there is a legitimate use of a meta-tag, for example, to honestly describe the contents of a website.
What approach have the English courts taken?
These issues were addressed by an English court for the first time in June of last year. There had been speculation as to whether the English courts would follow the decisions in US cases. The reason is that in English law there is no doctrine of unfair competition or an equivalent to the US doctrine of "initial interest confusion" (see above). Indeed, the English courts have made it clear that to prove confusion (which is necessary to show in most instances of trade mark infringement), it is necessary to show more than mere association.
As it happens, in a summary judgment application, the English courts found that the use of a meta-tag did constitute trade mark infringement and passing off. The court concluded that the use of a claimant's trade mark by the defendant as a meta-tag was for the sole purpose of diverting business away from the claimant's website. Again, it is probable that the courts would have come a different conclusion had the meta-tag been used for a legitimate purpose.
