Court rules that trademark use in metatags represents infringement

David Naffziger Apr 10, 2008

The 11th Circuit Court (GA) recently ruled that the use of trademarked terms in meta tags represents an infringing action, supporting a decision made by a district court.

The case involves two companies that compete in the spinal decompression device market. The defendant, Axiom, included the the plaintiffs trademarked terms 'Accu-Spina' and 'IDD Therapy' in its 'meta tags', and came up as the second organic search result for the trademarked terms.

However, the information provided by the court about the actual usage is quite weak and makes it hard to actually determine what the actual infringement was. There is no indication of which meta tags were used, what the search description said or what the content of the metatags involved.

There are several facts made clear in the case:

  • Axiom used trademarked terms in its meta tags
  • Axiom appeared second in Google searches for the trademarked terms
  • The description that Google showed for Axiom contained the trademarked terms in bold
  • Axiom did not use the trademarked terms anywhere on its website in visible text

It is very likely that Axiom included the trademarks in its meta descriptions and these descriptions were used by Google in the search results. However, it is possible but unlikely that Axiom included the terms in their keywords meta tag and that the search description was taken from elsewhere on the web.

However, the court goes on to demonstrate a pretty fundamental lack of understanding regarding the technology at work. A few of my favorite quotes:

the only possible cause for [the trademarks in the description ] is Axiom’s use of the trademarks as meta tags,

and

Axiom makes a brief, conclusory argument that no evidence exists to establish that the meta tags affected the search results. We disagree. The evidence indicates that nowhere in Axiom’s website do NAM’s two trademarked terms appear ... We cannot conclude that the district court’s implied finding of a causal relationship [that the use in meta tags impacted the rankings is clearly erroneous.

Of course, Google addresses both of these points in plain non-double negative english:

Google's creation of sites' titles and descriptions (or "snippets") is completely automated and takes into account both the content of a page as well as references to it that appear on the web.

and from this page:

And it's worth noting that while accurate meta descriptions can improve clickthrough, they won't affect your ranking within search results.

As always, Eric Goldman has an excellent writeup about the ins and outs of the case on his blog and in particular, notes the differences between this case and the 1-800-Contacts vs. WhenU case.

If anything, I'd expect similar lawsuits for a while as this decision is further cleaned.

Topics: Trademark and Law

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