Meta Tags and Trademarks Laws

Introduction:

The age of technology has experienced vivid expansion in modern years, and the use of search engines has altered the use of internet from flaccid surroundings which were used for checking mails, to an interactive, user- permitted creation packed with vast amounts of information.

Web users operate search engines such as Yahoo, WebCrawler, HotBot, Alta Vista, etc. to locate the particular site of their interest and get result for their query.

Each search engine generally uses a specific kind of software, usually called a spider or crawler, to gather the addresses of Web pages available on the Internet [1] . Hyperlinks, frames, and meta-tags are presently a few other tools at this time available to the search engines to set the result for preferred question by the web user.

After query by the web user search engines use meta-tag to set the web links in a manner for the desired query of the web user and priorities the web links accordingly Mate tags are small blocks of text that are attached to web page and serve as a code to provide information about the web page.

Every person is at liberty to exercise his/her right to use trademark in Meta tags and in the matter of his or her own Web site. But the problem arises only when a person applies another party’s trademarks not including his permission.

In the present scenario where man is nothing without the technology one cannot deny the internet legal challenges. As a law student we know the rules of the copyright issues, trademarks and their application under the traditional ways of Intellectual Rights. No one can neither denies the existence of copyright matter in the text published in any web page, nor even the trade marks right involved in those pages in front the any element that can gather the requirements of these kinds of distinctive elements.

The aim of this research paper is to explore it with reference to the concept of Meta tag and establishing its point links with the legal terms of trademarks laws. Although there have been many of the lawsuits about Meta tagging have had place in countries like USA and UK, this article is going to discuss those case laws. With some brief references to the case laws our aim is just to explain the concepts of Meta tagging within a legal context of trademarks.

META TAGS:

According to Oxford’s Concise Dictionary the expression “meta” stands for something

“of a higher or second-order kind”.

Mate tags are small blocks of text that are attached to web page and serve as a code to provide information about the web page, such as the last it was updated. While they are not part of the visible portions of the web pages they are read by the search engines [2] .

Generally speaking, it can be said that search engines look at three major Meta tags:

Title Tag

Description Tag

Keyword Tag

Title and Description Tags are generally used by the site designers. Although the most important Meta tags are title, key word and description, there are other useful Meta tags like:

Refresh: Use this characteristic is to refresh the page and to convey the user following a definite period of time.

Copyright: The date on which the site was registered under Copyright Act.

Expires: Notifies when the page will be not in use? If your page describes last date for article set for March 2010, you may set the page expiration date to April 2010.

Web page designers use this out of sight HTML code to assign the keywords which are exchanged to search engine software. In assistance with a search engine, a meta-tag may be considered as a “pre-hyperlink” since a hyperlink is often created by a search engine.

Meta tag issue occurs when a company uses another company’s trademark as a meta tag in order to trick a search engine into directing traffic to a web site by tacking a free ride on the popularity of the trademark. Such use can be enjoined as trademark infringement.

Meta Tags and Intellectual Property Rights:

The material stored and transmitted through internet is intangible and much of it should be protected by Intellectual Property Rights. These rights can protect not only the intangible but also the substantial assets of the companies and the creative products of the mind from damage and unauthorized use of it.

One of the rights under Intellectual Property Rights is Trademarks. A Trademark is any word, name, slogan and designs that are used in commerce to identify a particular product and distinguish it from other. Trademarks identify specific goods with a particular company as that’s product “source of origin”. Thus the purpose of registered “trademark” is to protect a famous name so that it cannot be misused. Trademark issue arises when other company uses a trademark in bad way, to mislead consumer and create a likelihood of confusion about the source of the product or dilute association with the name. in a judgment by Delhi High Court in the case of Yahoo v. Akash Arora [3] , said that: “Even if an person is a regular user of the Internet, he may be an basic consumer of information and such a person may find his/her way to the defendant Internet site which provides almost similar type of information as that of the plaintiff and in that way misunderstanding could be created in the mind of the said person who intends to visit the Internet site of the plaintiff, but, in fact reaches the Internet site of the defendant.”

With the growth of internet, it has raised many legal issues. One big change which can be noticed with growth of internet is more and more curiosity about intellectual property in internet. In the increasingly borderless world of the internet, companies are also aware to register their products throughout the world either on web or in real world.

One of the areas of Intellectual Property Right peculiar to the Internet is the use of Trademarks within the body of the Meta tag section of the source code of a writer web site.  The mode in which the Meta tags are produced and used in the web-link, it can commonly creates the differentiation between the result found on the Net or where within the search results, the site pops up.  The use of trademarks in the Meta tags is a legal concern for the site holder and the trademark owner.

Customarily the owner of a site is liberated to use trademark in Meta tags for his/her web site. A trouble comes up, when a person makes use of other party’s trademarks on his or her site without consent of the site owner. Same was held by court in Brookfield Communications vs. West Coast Entertainment [4] , a site called ‘westcost’ was run by defendant, it used term “moviebuff” in its keywords, which was in fact registered in plaintiff’s web site (Brookfield). Even though the defendant owned the domain moviebuff.com, court held that the use of registered trademark in keywords amounted to a distraction of traffic from plaintiff’s site and amounted to unauthorized use of registered TM and thus amount to infringement.

Discussing of legal responsibility to meta-tagging the copyright breach is quite complicated since for copyright one must utilize any kind of image or graphic and that is not the case here because Meta tags are mere words. Yet if someone still use as Meta tags, slogans or phrases that belong to someone else, therefore it could be a violation under other legislations.

In United States customarily, trademark issues have been addressed under the Lanham Act’s remedies for infringement where a person can be liable for trademark infringement if he or she, without the permission of the trademark owner, “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ….” 15 U.S.C. §1114(1)(a). If we go by Oppedahl & Larson v. Advanced Concepts [5] , where defendant was using domain names of a firm (oppedahl and larson) as meta tags of it website without clear grounds and approval. But it was with the impression that the defendant supposing to divert the traffic, that actually might not visit his site. Honorable court banned the use of such use without use of sufficient authorization and issued permanent injunction, on the basis of unfair competition under Lanham Act (US Trademark Act).

Same ground was taken by court in Insituform Technologies Inc. v. National Environtech Group, L.L.C. [6] the court imposed a prohibition on National Environtech, because the defendant was using the plaintiff’s company name and trademarked products call ‘Insituform’ and ‘Insitupipe’ in his meta tags. Clear position on trade mark laws and related meta tags is provided in number of playboy (TM) related cases i.e. In another case of Playboy Enterprises Inc. v. Calvin Designer Label [7] playboy is already a registered TM of Playboy Enterprises Inc, the defendants sent multiple mails (messages) indiscriminately to multiple individuals and newspapers with their trademarks Playboy and Playmate, for numbers of time on its websites called “playboyxxx.com” and “playmatelive.com”. The court held that even if the violation was indistinguishable to the community, there is trademark law violation under the trademark principles of the Lanham Act, on the basis of the intensity of trademark theory. In Playboy Enterprises Inc. v. AsiaFocus International and Internet Promotional [8] a site called ‘clickthrough’, guiding people towards porn sites. Court held the defendant liable for Three Million USD, stated against TM violator that, ‘by through national and international advertisement and promotions, defendant has acquired a goodwill and secondary meaning, such that people has come to such conclusion and started associating “Playmate” and “Playboy” trademarks exclusively with [Playboy Enterprises]”.

In the case of Eli Lilly & Company v. Natural Answers, Inc. [9] , Company called ‘Natural Answer’ used to advertise its ‘Herbscriptions line’ in its website very solely. Website also contains a column labeled “Think Herbs – not drugs!” that states, “Don’t get your prescriptions filled with drugs . . . Get your Herbscriptions filled with Nature!” website also features a table “Herbs v. Drugs. That web site contain a source code which incorporated the term “Prozac” as a Meta tag, and described HERBROZAC as “a authoritative, and effective all-natural and herbal formula alternative to the recommended drug Prozac.” Internet search engines recognize source codes, which are not straight away visible to an Internet user, in rejoinder to search queries. But the Natural Answers’ use of word “Prozac” as a Meta tag was an attempt to direct Internet users searching for information on PROZACþ to Natural Answers’ Web site. This effort actually was futile, because all the searchers who enter the word “Prozac” were flooded with Web sites containing references to PROZACþ. Then, the defendant removed the term “Prozac” from its source codes in response to this lawsuit.

As Lanham act applies only to US, and it does not assist in detecting infringement. Thus companies have developed “software boots” to detect infringement and in late 1999 two additional avenues became available to domain name registrants (1) The International Uniform Dispute resolution Policy (UDRP) developed by the Internet Corporation for Assigned Name and Number (ICANN) in October 1999 and the (2) US Anticybersquatting Consumer Protection Act (ACPA) enacted in November 1999. They add to, but do not replace Lanham Act remedies, especially where the domain name is not registered in bad faith, but nonetheless creates a likelihood of confusion or dilution of the name.

“It is not necessary that every Meta tag which is registered by a company cannot be used by other a Meta tag in his or her web site.” When the trademark is utilized only to portray services of a company, or their geographic origin or defendant has used plaintiffs trademarks in good faith to index the substance of its website, this is allowed under trademark law as a “fair use”, but, to prove the fair use burden of proof lies on defendant that the use of Meta tag was not to mislead the visitors of the site.

If we go by a hypothetical situation where a site called www.marwar.com distributes traditional literature and music from Rajasthan, it may use the word “Rajasthan” in its Meta tags. This use would not infringe the trademark registered by www.Rajasthan.com trademark because the term “Rajasthan” is being accurately used to describe the goods offered at www.marwar.com.

Same was held by court in Playboy Enterprises, Inc. v. Welles [10] , 7 F. Supp. 2d 1098 (Cal. S.D. 1998), where a woman who was a former Playmate of the Year in Playboy magazine was permitted to use those marks in the meta tags of her Web site to index and describe the content of her Web site, thus This use of Playboy’s trademarks was permitted because she was using the terms to describe herself and to properly index the pages. Her intention was to describe herself but not to mislead the visitors of site who enters word playboy in search engines.

Conclusion

As the internet is growing, the need to make one’s own web site known to public becomes harder more expensive and important. Every search engine has a searchable catalogue with fewer sites mentioned under it. It is not surprising, therefore that companies are including hidden from humans meta tags in their websites so that a user of a search engine may be drawn to their websites even if their sites does not mention the word searched for.

Cyber activities are sheltered under Information Technology Act, 2000 in India but Information Technology Act, 2000 itself does not cover every question related to cyber law. The protection of Intellectual Property on Internet still remains a grey area in India with information technology Act, 2000. Under the TM Act of 1999, infringement covers every kind unauthorized use of registered mark or using any mark identical to original to confuse the customer and to gain unfair profit under which Meta tags can be said to have been covered.

Here also, if the mark is used with bona fide intention there is no infringement, but again the intention is somewhat very tricky to proof. As a result, if things cannot be represented without the use of registered mark there is bona fide use, or else not.

To restrain such live out, Trademark owner first should request the defendant not to use the similar/identical. Later on, there can be suit filed in court of competent jurisdiction, and even damages (monetary relief) can be asked.

In India Trademark right is protected under the Trademarks Act, 1999, where a registered trademark is infringed by a person under sec 29 who not being a registered proprietor of the mark uses in the course of trade a mark similar or identical to such registered trademark, when in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark, or if the TM is identical with or similar to the registered trade mark [Sec 29(4) (a)].

Trademark infringement can only be claimed when the object is registered, but if the TM is not registered, tort of passing off is committed (under sec 27), when offending trader utilizes an established trademark in such a way so as to origin confusion or deception in the mind of the consumers concerning the source or origin of the goods. There has to be wrongful misrepresentation of product to ultimate customers, in such situation there can be case of passing off on ground of:-

There is goodwill associated with the mark

There is misrepresentation of the mark and

There is confusion or likelihood of confusion or deception.

So the researcher would like to conclude that the vicinity of Cyber activities which are sheltered under Information Technology Act, 2000 should be increased and the inter-relation of internet and Intellectual Property Rights should be understood.