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Issues with Using Trademarks as Meta Tag Keywords

You could face legal problems if you use someone else's trademarks as your meta tag keywords. Generally speaking, a meta tag is a piece of HTML code that is embedded within a website. This tag is used by the designer or owner of the website to quickly identify the content that is contained within the site. They are a powerful online tool because meta tag keywords are used by search engines and have a direct relationship to the frequency in which search engines will 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 have proven to be a powerful tool to help websites be "found" by search engines, they sometimes are used improperly as keywords. Some companies have used their competitors' trademarks within their meta tags in order 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 having to pay damages and even the other side's attorneys fees if you lose in court.

How Meta Tags Work

If you go to a website via a conventional Internet browser, you will generally not see the meta tags that the website is feeding to search engines. Just to give an example, the 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 ">

Additionally, the description meta tag could look like this:

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

Search engines are the primary users of meta tags. Depending upon how the search engine's code is running, it will find and use a website's meta tags in order 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.

Meta Tags Being Used to Divert or Confuse Users

There have been attempts (some successful) to use meta tags and meta tag keywords to divert or confuse web users. The websites do this by using improper meta tags that do not accurately describe their own website, instead drawing hits away from proper websites. As an example, a movie theatre company could plant the keyword "Century" or "AMC" in its site's meta tag to draw traffic away from those websites when using those search terms.  

Many courts have found that using trademarked names in this manner is a form of trademark infringement when it causes customer diversion or confusion.

How To Stop a Website From Infringing On a Trademark

In order to stop a website from infringing on a trademark by using it in the meta tag, the owner of the trademark should first send a cease and desist letter demanding that the trademarked terms be removed from the meta tag. If this letter does not work, the next step is to file a trademark infringement lawsuit in federal court. Where it can be shown that the use of the trademark was willful and with intent to deceive the customers, monetary damages can amount to hundreds of thousands, if not millions, of dollars.

When Using a Trademark in a Meta Tag May Be Allowed

What you've read above may incline you to think that any use of a trademark in a meta tag that that could cause confusion is disallowed. But if a trademark is used incidentally to describe a good or a service that a company provides, or a geographic location, then use of the trademark is permitted under "fair use" laws. For example, suppose a company was named "Rain Forest," and also had the term trademarked. If a company that sold art that was crafted in a rain forest used the term "Rain Forest" in their meta tag, this would fall under the fair use laws.

As another example, in the case of Playboy Enterprises, Inc. v. Welles, Playboy sued a former playmate because she had set up a website and used "Playboy" and "Playmate" in the meta tag. The court ruled that Welles could use the terms based on a three step test a normative use of a trademark is permitted where:

  • The product or service can not be readily identified without using the trademark (the trademark is descriptive of a person, place, or product);
  • Only so much of the mark may be used as is reasonably necessary for identification, and
  • The user does nothing to suggest sponsorship or endorsement by the trademark holder.

The court found that Welles could use the trademarks because she could not identify herself without using the trademarked terms. In addition, the website had many disclaimers that the website itself was not linked to Playboy which further lessened the likelihood of confusion.

Tips on Using Meta Tag Keywords

Below are some additional suggestions for avoiding trademark issues when using meta tag keywords:

  • Try to avoid using trademarked terms in your meta tags unless you receive permission from the trademark holder.
  • If you are in doubt as to whether you should include a trademarked term in your meta tags, err on the side of caution and exclude it.
  • Never put a trademark in your meta tags with the goal of drawing traffic away from a competitor or confusing the customers.

Contact an Attorney for Help with Trademark Issues

Intellectual property law, which includes trademarks, can be quite confusing at times. Keeping in mind that an ounce of prevention is better than a pound of cure, consider consulting with a trademark attorney or business and commercial law attorney if you have any questions or concerns.

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