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Meta Tag Lawsuits

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Is it illegal to use trademarked terms in your meta tags? Not necessarily. Can you get sued? Yes, and people have.

Trouble may come your way depending on why and how you are using the tags. Those who used the tags in what was deemed a deceptive manner have lost. However, action was halted against one defendant who proved to a judge that she had a legitimate reason to use the terms.

Key cases about this issue are summarized below, and there are links to more information. Search Engine Watch members also have access to a page that discusses this issue in more detail.

NOTE: I've been involved in some of these cases. A disclosure statement is at the bottom of the main Search Engines & Legal Issues page.

Oppedahl & Larson v. Advanced Concepts

The defendants had no clear reason for using the name of Oppedahl & Larson, a law firm that has dealt in domain name disputes, in their meta tags. There was an impression that the defendants hoped to capture traffic that would gain them domain name registration fees or web site hosting clients. The court banned them through a permanent injunction from using the name without authorization. The actual complaint is online.

Why Is It Important?

First case dealing with the issue of misleading meta tags. Terms appeared only in the tags, and spamming was involved. Be sure to see the Lawsuit Over Meta Tag Keywords article which discusses this case in particular and the general issues in more detail.

Docket Information:

Civ. No. 97-Z-1592 (D.C. Colo., July 23, 1997)


Insituform Technologies Inc. v. National Envirotech Group, L.L.C.

Insituform sued National Envirotech for the using its name and a product name Insituform in its meta tags.

While it was also alleged that some slogans and images from Insituform were also used, meta tags were central in the judge's mind. The words only appeared in the meta tags, not in page copy at all.

"As told to me, the judge was most interested in the meta tag issue. The judge clearly did not like what National Envirotech had done with the meta tags," said Mark Pruner, who was involved in the case on behalf of the plaintiff. "The sole plausible reason for these registered trademarks to be in the meta tags was to misdirect people to the National Envirotech website," he said.

National Envirotech removed the disputed material but did not agree that it was suggesting an affiliation with Insituform or trying to deceive people.

Both parties reached a settlement agreement, but the judge also issued a permanent injunction.

Why Is It Important?

First legal ruling in a case involving meta tags.

Docket Information:

Civ. No. 97-2064 (E.D. La., final consent judgment entered Aug. 27, 1997)


Playboy Enterprises Inc. v. Calvin Designer Label

Playboy sued two adult web site operators who spammed their pages with the word Playboy and Playmate hundreds of times. This helped them rise to the top of some search engine results for a search on "Playboy."

The defendants were also using the terms Playboy and Playmate in the site names, the domain names and in their slogans.

The San Francisco federal judge issued a preliminary injunction against the operators, deciding that trademark infringement and false representation could be proven trial.

Why Is It Important?

First legal ruling that did not also involve a settlement.

Docket Information:

Civ. No. C-97-3204 (N.D. Cal., Sept. 8, 1997)


Playboy vs. AsiaFocus and Internet Promotions

Playboy sued the operators of now-defunct web sites for using "Playboy" and "Playmate" in their URLs and meta tags, among other things. The sites were primarily designed as "clickthrough" sites, meant to capture traffic, then earn money by people clicking on banners to porn destinations.

Why Is It Important?

First legal ruling resulting in a cash award.

Docket Information:

Civ. No. C-97-3204 (N.D. Cal., Sept. 8, 1997)

Related Information:

Playboy wins third piracy suit
News.com, April 22, 1998
http://news.com.com/2100-1023-210449.html

Some more details on Playboy winning against AsiaFocus and Internet Promotions.


Playboy vs. Terri Welles

A judge refused to grant an injunction against Terri Welles, Playboy's 1981 Playmate of the Year, to prevent her from using terms such as "Playmate" and "Playboy" on her web pages and within her meta tags.

The judge felt Welles had a legitimate reason to use them in order to describe herself, and importantly, to catalog her web site properly with search engines. She further noted that Welles was not using the terms in an attempt to mislead into believing they were at a Playboy site.

Playboy's appeal of the ruling was rejected by the U.S. Ninth Circuit Court of Appeals, on Oct. 27, 1998. The company amended its initial complaint and added new complaints. Its second attempt was dismissed in Sept. 2000. The appeal of its second attempt was dismissed on Feb. 1, 2002.

Why Is It Important?

First legal ruling supporting the use of trademark terms in meta tags.

Docket Information:

Civ. No. C-97-3204 (N.D. Cal., Sept. 8, 1997)

Related Information:

The Terri Welles Case
http://www.terriwelles.com/legal/counterclaim.html

Produced by Terri Welles, it provides links to articles and resources about Playboy's case against her, plus her counter-claim against Playboy.

Ruling On Playboy Appeal In Welles Case
US Court of Appeals, For the Ninth Circuit, Feb. 1, 2002
http://caselaw.lp.findlaw.com/data2/circs/9th/0055009p.pdf

PDF file above has the court opinion rejecting Playboy's appeal in the Terri Welles case.

Former Playboy Model Wins Right to Use Keywords
New York Times, Dec. 17, 1999
http://www.nytimes.com/library/tech/99/12/cyber/cyberlaw/17law.html

Covers how the use of "playboy" and "playmate" on the Terri Welles site was found to be fair use.

Case Against Playboy Model Could Set Precedent
New York Times, April 23, 1998
http://www.nytimes.com/library/tech/98/04/cyber/cyberlaw/17law.html

Excellent article describing issues involved in the Playmate case.


Brookfield Communications Inc. v. West Coast Entertainment Corp

West Coast initially won the case against it for using the Brookfield's "MovieBuff" trademark in its meta tags, but this was reversed on appeal and the case sent back with instructions to grant a preliminary injunction

The widely-cited appeal found that the use of the trademark in the meta tag created "initial interest confusion." This means that people who were seeking the Brookfield site might have come instead to the West Coast site.

Unfortunately, the court in my opinion did not understand properly how meta tags work, when it stated, "Using another's trademark in one's metatags is much like posting a sign with another's trademark in front of one's store."

Inclusion of a term in a meta keyword tag might help a page be found for that term with some search engines. However, it is not a "sign" in the sense of that placed on a store, to be read by consumers. Instead, it is the meta description tag that serves as a sign (and with only some search engines).

Given this, it is the wording of the meta description tag that should be examined to see if a consumer is being mislead about the content of a page.

As an illustration, Coke might include the trademark "pepsi" in its meta tags on a page comparing Coke to Pepsi. That isn't misleading consumers. In contrast, if Coke used a meta description tag to make its page appear to be something provided by Pepsi, then that could be considered misleading.

Why Is It Important?

First appellate ruling against the use of trademark terms in meta tags.

Docket Information:

No. 98-56918 US Court of Appeals for Ninth Circuit D.C.


Terri Welles vs. Playboy

Terri Welles filed a counter-claim against Playboy over its continued attempts to restrict her use of its trademarked terms on her web site. The claim sought damages and a ruling against future suits being filed by Playboy. It was dismissed.

Why Is It Important?

First suit against a trademark holder over the right to use its terms in meta tags.

Docket Information:

No. CV-98-09074-CRM Appeal from US District Court for Central District of California


Related Articles

NOTE: Article links often change, especially the older an article is. In case of a bad link, use the publication's search facility, which most have, and search for the headline. Also, some very old articles flagged "no longer online" are still listed in case you can find them in offline archives.

Trade mark not abused by meta tag and search ads, says UK court
Out-Law.com, March 8, 2004
http://www.out-law.com/php/page.php?page_id=trademarknotabuse1078753419&area=news

An English appellate court ruled that Reed Business Information did not violate trademark laws by using the word "reed" in meta tags on its TotalJobs.com web site. Reed Executive, an employment agency, had claimed the use of the word in meta tags, as well in search banner ads, diverted traffic from its own employment sites and caused confusion. The appellate court disagreed.

Local lawyers duke it out in cyber spat
Milwaukee Journal Sentinel, Feb. 4, 2003
http://www.jsonline.com/news/metro/feb03/115925.asp

Wow, flashback to the 90s, because here's a retro case involving meta tags. Milwaukee's lawyer Gerald P. Boyle, who represented serial killer Jeffrey Dahmer, claims in a suit that the use of his name in a meta keywords tag is causing competing lawyer John Cabaniss to ranking in the top results for "gerald p. boyle" at Google. Google doesn't index the meta keywords tag, so if that's the chief evidence in this case, it's going to be a short one. Of course, Cabaniss doesn't help himself by incorrectly saying about Boyle, "He just has to get better meta-tag people." Put gun in hand, aim at foot -- now shoot!

The page in question has already changed on Cabaniss's web site, and it has no meta keywords tag on it. The cached copy at Google of the older version of the page also shows no meta keywords tag in use, so you almost wonder if there was ever one at all. Regardless, the main reason that page is currently ranking well at Google is because Boyle's name is used in the title tag of the page, as well as in the body copy of the page.

The page talks about a case that Boyle lost, so using his name is also probably fair game. The key challenge will be to convince a judge that Cabaniss created this page solely in hopes of getting people to his web site if they searched on Boyle's name.

Legal Rulings On Image Search & Meta Tags
SearchEngineWatch.com, Feb. 19, 2002
http://searchenginewatch.com/sereport/article.php/2164561

In the right circumstances, image search engines don't violate copyright and using another company's trademarks in meta tags isn't infringement, two separate court cases have found. A rundown on the new rulings can be found in the story below.

Misys website tactics may break the law
Sunday Times, April 1, 2001
--no longer online--

A large software maker in the UK was found to be including the names of its competitors in meta tags on its site and is now investigating how this happened. Also cites stats from a Computing magazine survey that estimated that Internet retailers in the UK may have lost as much as US $750 million apparently through other sites making use of their trademarks in meta tags. I haven't seen the actual survey, but I find it far fetched that anyone could make anything approaching a realistic estimate of this.

Search Engines, HTML And Trademarks: What's the Meta For?
Virginia Law Review, Aug. 2000
http://www.chaihana.com/Metafor.pdf

Long legal note, in PDF format, providing a comprehensive look at the legal issues surrounding meta tags.

Terminix Abandons Lawsuit Against Free Speech on the Internet
Public Citizen, March 10, 2000
--no longer online--

Terminix has given up in its meta tag-related lawsuit against a site complaining about the pest control company's work. This is a press release from the legal group that represented the protest site. I also volunteered time on behalf of the protest site.

Search Engine Lawsuits O'Plenty
The Search Engine Report, Dec. 6, 1999
http://searchenginewatch.com/sereport/article.php/2167671

Update on several cases involving search engines, such as the Playboy-Welles dispute, the Terminix complaint (see above), and the Playboy-Excite case, and the Disney-GoTo.com logo suit.

Search engines can be tricked into serving up porn sites
MSNBC, Aug. 18, 1999
--no longer online--

A look at a metajacking case, where someone stole someone else's meta tags. Comments from search engines and the FBI. The usual caveat applies -- just using someone else's meta tags doesn't mean that you will rank well for their terms. In this case, the real issue is what happens when someone is actively trying to mislead consumers into thinking they are reaching another company and who should be responsible for taking action -- the search engines, the site owners, the police, the courts?


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