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More About Meta Tag Lawsuits

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When is it OK to use trademarks in a meta tags? First, why are you doing it?

Usually, this becomes an issue become some "secrets guides" in the past have suggested using a competitor's name or terms as a good way to "hijack" their traffic. You'll come up when someone searches for your competitor, so how can you lose?

Well, you may lose if your competitor sues you. Maybe you'll ultimately win the right to use the terms, but it may be a costly battle. So far, most defendants have lost.

The key will be how you are using the terms. Is there a legitimate reason, or are you showing some type of deception.

For example, simply using a competitor's term in your tags is no guarantee you'll do well, especially if the competitor has tagged their own site properly. Your tags probably won't outweigh their tags that reinforce their content.

As a result, some people spam. They repeat the term over and over, get past the filters and make it to the top.

Taken to court, they'll likely face a judge that sees this as deceptive or misleading tactic. That's what's happened in the losing cases summarized on the Meta Tag Lawsuits page.

When's Legitimate

Say you are an online video seller. You may need to include Disney trademarked terms in your tags to ensure customers can discover your products. This could be easily argued before a judge.

This is in fact the successful argument that Terri Welles, a former Playboy Playmate Of The Year, made for the right to use terms such as "Playboy" and "Playmate" on her page. They were essential to describing her background and work.

Likewise, this argument could be extended to competitor terms. If I were Pepsi, I might argue that people looking for "coke" are doing a generic search for soft drink information, and I need to include the term coke to ensure that my site is properly indexed (not that just using the term would necessarily help, of course).

Furthermore, if I were Pepsi, I could simply create a page comparing Pepsi to Coke, perhaps the results of a survey I conducted. I have every right to use the word Coke on that page. Furthermore, I would have every right to use the word Coke in my meta tags in order to properly classify the page.

The key to all of this is not over the use of a term in a meta tag. It is whether a company is being deceptive and trying to fool people into coming to a site they thought was something else.

If I'm Pepsi, and I rank well for Coke, I'm probably not going to have any problems unless I also made it so the description that appeared with my page made it seem as if I was Coke, or unless I made my site actually look like Coke.

Should You Sue?

What if you find someone using your own trademarked terms? This may not be a problem, if you look to your own pages, first.

A company that tags its own pages properly usually will rise to the top for its trademarked terms, but virtue of the fact that they have many, many pages relevant to those terms which are reinforced by the meta tagging.

Tagging your own pages may cause you to be so dominant that the people attempting to hijack your traffic are never seen. That solves the problem without resorting to expensive legal action.

Another option is to message the search engines, especially if your competitors are spamming your terms. It could save you time and money and still bring the result you are looking for.

Avoiding Problems

The appearance of terms in meta tags are only one of many factors that MAY help a page rank well with SOME crawler-based search engines. Despite all these qualifications, the use trademark terms in meta tags is often seized upon by lawyers as proof positive that someone has done something wrong.

Given this, you might avoid using trademarked terms in meta tags altogether, to limit potential problems, despite the fact that you may have every right to use them.

If you do decide to use them, here are some guidelines you might consider following, to limit potential problems. These are NOT legal guidelines. Instead, they are simply guidelines that I feel can help site owners avoid problems or defend themselves, should someone suggest that they are infringing trademarks.

  • Use of a brand name in the meta keywords tag is acceptable if the article makes mention of that brand in some predominate fashion. For instance, if you write an article about using Flash or Shockwave, putting the term in the meta keywords tag is a fair way to help classify the story.
  • Brand or trademarked terms should never be repeated more than once in the tag. This should reduce any concerns that we might somehow be trying to grab a brand-owner's audience.
  • Brand names can be used as appropriate in the meta description tag to fairly describe the content of a page.
  • Brand names can be used in the title tag when appropriate to the page's content. For instance, an article about using Flash might be entitled "How To Use Flash."

PLEASE NOTE! USING THE ABOVE GUIDELINES DO NOT MEAN THAT YOU WILL NOT GET SUED. SOMEONE CAN SUE YOU FOR ANYTHING.

See this additional article on how excessive repetition -- or lack of it -- could make a difference in a legal fight:

Legal Rulings On Image Search & Meta Tags
The Search Engine Update, Feb. 19, 2002
http://searchenginewatch.com/_subscribers/articles/02/article.php/2152251

In Conclusion

If you have a legitimate reason to use trademarked terms in your meta tags them, you can certainly do so. But keep in mind that anyone can complain, so you may be facing a suit regardless of the correctness of your action.

If you are using trademarked terms in tags because you think you can "hijack" a competitor's traffic, don't. This will probably get you into trouble. Just using the term probably won't get you high in the listings. If you then push the terms to some extreme, such as by spamming, you may invite trouble from search engines and the lawyers.


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