Issues With Using Trademarks as Meta Tag Keywords

Using someone else's trademarks as your meta tag keywords could cause legal problems. Generally speaking, a meta tag is a piece of HTML code embedded in the web page. This tag identifies the content contained within the site. Search engines use meta tag keywords to affect the frequency with which they display a website as a hit.

Below is an overview of meta tags and trademark issues. See FindLaw's Internet and E-Commerce and Trademarks sections for additional articles and resources.

Meta Tag Keywords and Trademark Issues

While meta tags are powerful tools to help websites be "found" by search engines, they can be improperly used as keywords. Some companies have used their competitors' trademarks within their meta tags to draw business away from their competitors' websites, resulting in several lawsuits. If you use your competitors' trademarks within your website's meta tags, you risk paying damages and even the other side's attorney fees if you lose in court.

How Meta Tags Work

You generally don't see the meta tags that a website feeds search engines. Meta data is part of the site's source code and not visible on screen. If you know how to view HTML codes, you can see the source code. But it won't mean much unless you understand HTML.

Search engines are the primary users of meta tags. Depending on how the search engine's code runs, it will find and use a website's meta tags to index it within the search. The importance of meta tags for use in search engines has waxed and waned periodically throughout the history of search engines.

Today, search engines like Google use complex algorithms to create page rankings. The use of meta tags in their algorithms depends on the searchers' prior search history and the nature of the question. Google returns the search engine results based on the meta tags the algorithm collects.

For example, a query might be, "How do meta tags work in Texas?" A keyword meta tag for a website that discusses how meta tags work in Texas might look like this:

<meta name= "keywords" content= "metatags,metatag,search engine,deployment,Texas,United States">

The description meta tag could look like this:

<META name=" description" content=" Information on the meta tags keywords and how they are used on the internet">

Google's algorithm would compare the query and keywords and return that website at the top of the rankings for that searcher's question.

Dilution, Tarnishment, and Blurring

Since search engines only look for keywords in a searcher's query, anything in the meta tags will pop in the search, even if the site itself is irrelevant to the searcher's actual query. Most users have had the experience of searching for a topic and having an unrelated site appear in their list. This was very common in the early days of the internet.

Trademark law recognizes several types of trademark infringement. The most common form is simply using the registered trademark as your own. Intentional trademark theft is a federal offense. The trademark owner may file legal action against the infringing company in court.

When a meta tag uses a company's trademark, the goal is often to draw traffic from the legitimate trademark owner to the infringer's web page. For instance, a computer company that doesn't sell Intel products might put "intel_chips,intel,intel_coprocessor," and other keywords into its meta tags. When a searcher queries "Intel products," the infringer's site will rank high. Courts have held that this type of trademark infringement is unfair competition.

• Dilution is a type of infringement where association with other products lessens the value of a registered trademark.
• Tarnishment is a particular kind of dilution in which the user is illegal or "unwholesome." Suppose the computer company sells cheap knockoff chipsets. In that case, the company's use of Intel's brand tarnishes Intel's name.
• Blurring occurs if the infringer's use is similar or confusing to users. Some web pirates create sites that mimic the owner's web page or have domain names that resemble the real name—for instance, Tradename.com instead of Tradename.org.

The intentional use of trademarks to divert traffic from a legitimate site to your own website violates trademark rights.

Lawful Use of a Trademark

There are times when you can use a trademark in your meta tag. A trademark used to describe goods, services, or geographic locations is allowed under "fair use" laws. For instance, Amazon is a well-known online distributor and shipping company. But it's also a well-known river and rainforest. Amazon.com can't prevent you from using "Amazon" in your meta tag to describe goods or services from the Amazon rainforest.

The Playboy Enterprises, Inc. v. Welles case highlighted the legal issues in fair use of a trademark. Terri Welles was a former Playboy Playmate. She had a new business and website and used "Playboy," "Playmate," and "Playmate of the Month" in her meta tags. The Ninth Circuit held that Welles' use of the trademarked terms fell within a three-step normative test for trademark usage:

• The trademark is descriptive of the product. In this case, Ms. Welles' draw was her status as a "former Playmate of the Month."
• The mark is only used as needed for identification.
• The user does not suggest sponsorship, endorsement, or license by the trademark holder. In this case, Welles' website contained a disclaimer on each page stating the site was not affiliated with Playboy Enterprises, Inc.

Limiting the likelihood of confusion helps show good faith in the usage of the trademark.

Using Trademarks in Meta Tag Keywords

The best way to avoid legal issues with trademarks in your meta tags is not to use them. You may use your own trademarks but never use a competitor's trademark.

If you must use a keyword that's also a competitor's trademark, such as "Amazon," keep search engine algorithms in mind. Try adding additional keywords that direct traffic toward your site.

Consider using disclaimers on your site to avoid customer confusion.

Get Legal Advice

Intellectual property law, including trademark infringement, is very complex. If you have concerns about intellectual property rights, speak with a trademark attorney or business and commercial law attorney in your area.