Metatags are invisible HTML programming codes that contain commands to search engine programs that index web pages. In normal practice they provide keywords relating to the content of the page so a search engine will display the page in its results when a user inserts them as search terms. Thus, by successfully using metatags, a web operator can increase the frequency a search engine will index a site.
However, website operators quickly figured out that by using metatags unrelated to their own content or metatags that contained a competitor’s company or product name, they could increase their own traffic. Even though metatags are not visible on the page (they may be viewed by clicking “View” and then “Source”), this deceptive practice has been the basis for numerous lawsuits brought by individuals, companies, and web sites asserting that unrelated websites are illegally using metatags.
In general, courts have enjoined the use of trademarks in a non-owner’s metatag when the parties were competitors or when the use of the trademark in a metatag was used to divert business to the site for profit. The key factor courts consider in determining whether a website has infringed on another’s trademark through its use in a metatag seems to be whether there could be consumer confusion. See, e.g., Playboy Enterprises, Inc. v. Calvin Designer Label (N.D. Cal. 1997), 985 F.Supp. 1220 (web site may not use “Playboy” and “Playmate” in metatags on web site because web site was attempting to profit by confusing consumers and diverting business to the site).
The improper use of metatags by online businesses can also raise issues of unfair competition or trademark dilution. Unfair competition prohibits a company from deceptively claiming a connection with or endorsement from another. Trademark dilution occurs when one uses the trademark of another in such a manner that it blurs the significance of the mark or when using a similar mark in an objectionable manner tarnishes the meaning of the mark. For an example, see Ken Roberts Co. v. Go-To.com (N.D. Cal. May 10, 2000), No. C99-4775-THE (competitor’s use of plaintiff’s name in metatags interfered with plaintiff’s prospective economic advantage by knowingly diverting plaintiff’s current or potential customers from plaintiff’s website to competitor’s, constituting unfair competition and trademark dilution).
However, businesses may use another company’s trademark under certain circumstances. An online business may generally use another company’s trademark as a metatag on a webpage with a comparison advertisement. Of course, an online business would also be permitted to use another’s trademark as a metatag if it was a distributor of the trademark owner’s product and had a license from the manufacturer to use the trademark. Courts have also refused to find trademark infringement when the metatag is used to indicate content that provides a description of goods or services of the mark owner or their geographic origin. Such are permitted as a “fair use” of a trademark. See, e.g., Playboy Enterprises v. Welles (S.D. Cal. 1998), 7 F.Supp.2d 1098, aff’d without opinion, (9th Cir. 1998), 162 F.3d 1169 (it was “fair use” for former Playboy Playmate of the Year to use “playboy” and “playmate” in metatags of her website because they were key words that identified her source of recognition to the public). However, outside these limited circumstances, online businesses should not use a trademark as a metatag without permission, particularly if the trademark belongs to a competitor. Many companies and trademark owners regularly search the Internet for metatag trademark violations, and such searches are simple to conduct.