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Courts and the META Tag
tomreagan writes "The San Francisco Ninth Court of Appeals has ruled that it is illegal to use someone else's trademarks in your META tags. A company called Brookfield Entertainment sued West Coast Video for putting "moviebuff" in their META tags, a term which it Brookfield has copyrighted. The court ruled that WestCoast video had to remove the word from its pages META tags. The really scary thing is that West Coast Video and Brookfield are in totally different businesses - it would seem that this means anyone can be sued for any infringement.
Webmasters everywhere should be quaking in their boots on this one.
The original story can be found here on the NYTimes website and the judgment can be found here on a Villanova website.
I actually read the NY Times story AND the court decision. The judge did not prohibit use of a trademarked word in a meta tag, just FRAUDULENT or MISLEADING use.
:)
Example: If, on TechSightings (a tech-oriented site review site I edit), I use "slashdot" as a keyword, I'm fine, because I've reviewed slashdot (favorably) in the past, and have referenced comments here more than a few times. This is "fair use," under copyright law.
BUT if I put up a porn site or one selling real estate or anything else irrelevant to slashdot, or created a site competitive to slashdot called "backslashdot" and THEN used "slashdot" as a key word, Rob would have every right to sue, and would probably win, because I'd be using HIS trademark to draw traffic to MY unrelated or competitive site in a fraudulent manner.
All the court decision mentioned in the above story did was re-affirm this. Statements like, "this is going to kill search engines" are nothing but FUD, and should be ignored.
From what I read in the decision, the judge had a fine grasp of what was going on online. Far better than, say, Al Gore.
--Robin Miller
Cheap Computing columnist
Note that the original complaint came up because ..
the person that had trademarked "moviebuff" wanted
to get the "moviebuff.com" domain that the West
Coast company had already. The trademark owner
took this to court, and as the end result,
the West Coast company is prohibited from using
the word "moviebuff" as applicable to e-commerce
namely, they had to give up the moviebuff.com
domain, and they could not use the word in META tags that are used by search engines to place
their site higher up on the lists.
This, IMO, is a very isolated case that might have
some precident when there is a problem with
a gross trademark violation (read: domain name.com)
The end result of the above case would make
sense as to distance the violating company
from the trademarked word.
But in the case of general web usage, where
a window-frame making company might use "windows"
in their META tags, but at no other time
violates MS's trademark, I don't think this
case applies. If anything, if such a case should
come up, I would think that the search engine that
put the window-maker's site up above MS's site
would be the one at fault.
But, as always, IANAL.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
In the opinion, the ninth circuit compared the use of the meta tag to a street sign, falsely directing motorists to a competitor. The analogy is flawed.
The problem is that for all of the silly arguments comparing the internet to a road (as in Internet Superhighway), the internet remains a computer network where the cost of traversing links is not as significant as taking the wrong exit.
For example, if I knew that a certain book was either in Timbuktoo, or in Kyoto, but not in both cities, going to the wrong city would be extremely costly. If I used the internet, the cost of a wrong choice would be substantially smaller.
Traversal of http links is not significantly bond by geography, and users have become inured to the fact thet search engines often do not give the right answer. I can search through a list of 50-200 links in a very short period of time. In addition, most search engines provide a short desrciption and a title. It's not as though the Altavista engine reports them as Link 1 -- Link 200. I can scan the list until I see something about "Moviebuff Software".
This ruling isn't as bad as some people think. According to the NYTimes, you can still use a competitor's trademark in your META tag if you are comparing your product to theirs. So you can still use Coca-Cola in your page which compares it to Slashdot Cola (apologies to another poster).
Apparently you can also use someone's trademark in a META tag if that is used to "fairly index" your site (according to the Times, although they said litigation was ongoing in that case). So you can still put up a fan page for whatever and include the corresponding META tag. These are both fair use.
The only thing this ruling seems to prevent is using a trademark in your META tags to deliberately confuse someone into thinking that your site is something it's not. That seems like a good idea to me - truth in advertising and so on.
Of course, you could always set up your web site in a country that doesn't abide by U.S. trademark and copyright law. As the Internet becomes more regulated in the U.S., people will just set up their servers overseas and sidestep the whole issue.
Your right to not believe: Americans United for Separation of Church and
Trademark law, in a nutshell, goes like this: If I use "Quality" as the trade name for my dog food,
- it doesn't mean that people can no longer use the word "quality",
- it doesn't mean that people can't simply talk about "Quality Dog Food" in a non-advertising context, and
- at least in the case of regular words like "quality" -- as opposed to made-up words like "Xerox" or "Slashdot" -- it doesn't mean you can't use the same exact word to sell a different product (e.g., "Quality Dry Cleaning").
All the trademark means is that there are restrictions on the way you can use the word when you advertise for some other product: In particular, you have to make clear that the product you're advertising is made by someone other than the manufacturer who uses that trade name.I'd agree that these META-tag cases are harder than the typical trademark case, but not by much. If I put "Slashdot Cola tastes better than Coca-Cola" in the text of my web page advertising /.-brand beverages, there's no confusion -- it's clear to everyone that I'm selling something else. But the whole point of META tags is to work in the background (i.e., so you don't have to put "delicious carbonated presweetened cola flavored beverage" in the text of the page, but you can still pick up people looking for such things with search engines). If I look for "Coca-Cola" and find the /. Cola page without any explanation of why I got that result, I might assume that this was a new brand of Coke, or that Coke was now calling itself something different. That's trading on Coke's goodwill, and that's what the trademark laws prohibit. There may be some harder cases, but I think the general rule is sound.
(Come to think of it, I could go for an ice-cold Slashdot Cola right now. I wonder if there are any left in the fridge. (glug glug glug) Aaaah, so refreshing.)
there was an embarrasing situation for a major australian web developer [ Spike] when it was found that they had keywords in their meta tags for other competing design houses in the country. Ouch! Of course they blamed one of their "young and overly enthusiastic" web designers [who coincidentally had left the week before].
you want my prediction to the next trend in 'sneaky passing-off behaviour to nab hits away from your competitors'?
image names!
that's right. say i'm intel -- i'm going to call all my images "amd_####.gif" or "cyrix_####.gif". it'd take a while before anyone noticed!
OK, so maybe a little implausable. maybe i'm Microsoft and i'm going to call all my javascript variables "apple_####" and "java_####".
i mean where do you draw the line on this one?
--
Rare Window - free your photos
I found out why the judge decided to rule the way he did. This case was more than meta tags, but was West Coast Video's use of the term "moviebuff" in the meta tag AND in moviebuff.com
Brookfield entertainment had for awhile a product that was a database of movies called MovieBuff and trademarked the term right around the same time the domain name was registered by WCV in 1996. Just about 1999/99, Brookfield sent a letter to WCV stating intentions of filing a lawsuit over the use of "moviebuff.com" Next day, WCV "went live" with the site, and the actual opening of the site in 99. WCV argued since it was "The Movie Buff's Movie Store", it could use the domain and the META tag.
The court ruled, that by using the term "moviebuff" and not "movie buff" (Space included), they were infringing on the the federal trade mark held by Brookfield. They stated that they are competitors since on the WCV site at moviebuff.com, they had a serchable internet database similar to the one used by Brookfield. This is why the courts ruled that way. If they didn't have that database, then the courts probably would have ruled the other way.
(This is not the first time the Meta tags have come up in court. Playboy seems to have gone apeshit about the terms Playboy and playmate.)
McDonalds cannot use "Burger King" in their meta tags because they are competitors, so this is a similar analogy to the case at hand. This doesn't restrict the use of everyday terms in your site such as blockbuster or movie buff if you sell movies, but the use of the term moviebuff is now considered off limits.
Just make sure you aren't using a competitor's trademark to lure people to your site.
IANAL.
RB
"If 50 million people say something foolish, then it is still foolish" - French
Corrolary:
"If 90% of the world uses a crappy OS, it is still a crappy OS." - Pryde