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"Pez" Forbidden in Meta Tags
Ex Machina writes "According to the legal jargon on Pez.com:
"You may not embed Metatags (hidden text used by web search engines to find websites) into your website using any of the registered or
unregistered trademarks of Pez Candy, Inc. or its affiliates, in particular the PEZ® mark. Any such use of Metatags will be considered trademark infringement and will be prosecuted to the fullest extent of the law. "
Is there a precident for this case? I do believe this would fall under fair use--- for example, product reviews could be blocked if this was legitimized by a court. I fear lawyers. "
When someone types "pez" into a search engine, what is it they are looking for?
The answer is, clearly I hope, the second. The problem is that corporates don't see the world this way. The thought that people might search for their name, but go to their multi-million dollar, often content-void site but instead go to the place where the information they actually want may be found, leaves them dizzy.
Meta-tags are a mechanism which allows the author of a page to specify some keywords which describe the content. It works reasonably well. It is not intended, and does not function as a mechanism for identifying the official site relating to a trademark.
As a non-lawyer, and in an utterly non-advice-giving manner, I'd suggest that attempting to use trademark law to prevent other people saying "my site talks about Pez too!" is probably asking the courts to go too far. But then I'd have said suing mcdonalds when you spill coffee on yourself was unlikely to succeed either.
If the law sides with the corporates on this, then it can only be because they don't understand what search engines are for (You want information, not marketing). And they will have made the wrong decision.
It can be very hard to respect the law sometimes, so I've given up on doing so for the time being...
When I first got involved with the web, it was with a news-like organization. We produced some material, it was legitimately copyrighted. And we felt the impulse to ensure that nobody stole it and used it on their web site.
Of course, this was impossible, right or wrong. And no matter how many lawyers we had, and even if they worked for free (one did), there was simply no way to efficiently eliminate all traces of copyright violation. There are too many millions of people with the ability to copy something, and it took too much effort to even warn them about copyright violation.
Yes, copyright and trademark still exist on the web; nobody can effectively copy your site wholesale, nobody can get away with selling phony products under your name for very long, nobody can use your trademarks to direct people to their own site. Those sorts of major violations are easy enough to counter, just as they have always been. But when you talk about a zillion little violations... like fans using your name in their metatags... let it go. You can't win. All you'll accomplish is to piss off your loyal customers.
That said, I understand the need for these disclaimers; if they were actually chasing down minor violators, that would be quite annoying. A better idea is to protect a trademark by specifically allowing it to be used in certain ways, and having the lawyers chase down only the worst abusers.
The web works under a sort of de facto copyright law: if it can be done below the radar of the lawyers, then you might as well condone it, because you can't stop it.
Quick searches for "Pez" at Lycos, Altavista and Google yield a number of private pages by Pez fans and dispenser collectors ("PEZheads") -- "What's New in the World of Pez", "Dale's House of Pez", "Planet Pez", "Museum of Pez Memoribilia" and on and on. There's dozens of them. That's not too surprising -- any hobby, no matter how weird, has got a home page somewhere. And a lot of these pages have "pez" in the Meta-tags.
I am astonished at the idea that Pez might actually prosecute these people. I can't see how they'd have a case, since they're not appropriating the term to sell a product, they're just using it to help the other PEZheads find them. The problem, of course, is that when you get a threatening letter from a lawyer, you're going to have to fight back at great expense, or cave in.
But worst of all, these are people who like this company and buy its products! "Prosecute to the full extent of the law", they say. They're threatening to ruin their most loyal customers, on legal grounds that may be wholly spurious! There may be a worse way for a company to shoot itself in the foot, but right now I can't think of any. Imagine the David v. Goliath stories in the press about a stunned PEZhead under attack from the company he thought he loved. Have these people lost their minds?
Always keep a sapphire in your mind
In Spanish, pez means fish (and has two other lesser meanings) so if I do a website about fishing or aquaria, I will use pez in the metatags, as it is not the pez(R) trademark but a common word instead.
In fact, the so-called legal docuement doesn't just try to forbid use of 'meta' tags. It tries to totally exclude certain phrases from the English language:
IANAL, but I'm sure that this is unenforceable bullshit. You can mention any trademark, as long as you acknowledge the owner (eg, Pez is a trademark of Pez Corporation). You just can't make a similar product under the same name. (In the UK, you can't make a dissimilar product if consumers might be confused or it's thought that you're trading on the name - eg yesterday the Trade Marks Registry prohibited the sale of 'Visa' condoms.)
Given that they stick in a lot of rubbish about not mentioning their trademarks, it wouldn't be unreasonable to assume that their prohibition of 'meta' tags is also without legal weight. (Again, IANAL.)
Besides, you never signed that document - you don't have to abide by its terms.
-- Ed Avis ed@membled.com