Meta Tag Trademark Infringement and How to Stop It
What are Meta Tags?
A meta tag is information typically unseen by website users. However, a meta tag describes and indexes the contents of a web page. When one searches a term through a search engine, web pages are displayed as result with similar terms. The meta tags along with meta description and other HTML code are often included in website pages or blog posts to attract website users search for certain terms. This is part of an overall search engine optimization (SEO) strategy.
Trademark Use in Meta Tags — Can Meta Tags Infringe Trademarks?
The most common types of meta tags are description meta tags and keyword meta tags. For example, the description meta tag provides a short description summarizing the web site. Whereas, the keyword meta tag is a word or phrase that best describes the subject of the web site. Various information is also provided to web browsers and search engines by other useful meta tags, including: the meta http-equiv tag; the meta refresh tag; the meta copyright tag; and the meta author tag.
The main concern with regard to meta tags is the use of a third-party trademark in one’s meta tags. For example, website owners embed third-party trademarks in meta tag data to attract Internet traffic. This could divert website traffic from the trademark owner’s website. Meta tag misuse may allow the website owner to profit from public exposure and misdirected sales. When website operators intentionally use 3rd-party trademarks in meta tags, website copy, and code meta tag trademark infringement may occur.
Meta Tag Trademark Infringement Can Lead to Initial Interest Confusion
A series of circuit court cases have found that the use of trademarks in meta tags results in initial interest confusion. Therefore, one way to try to stop meta tag trademark infringement is through asserting a trademark infringement claim or unfair competition claim based on initial interest confusion.
“Initial interest confusion” is a legal doctrine that allows a finding of infringement where there is temporary confusion. Even when confusion is dispelled before the time of sale. The core element of trademark infringement is whether the similarity of the marks is likely to confuse customers about the source of the products.
Courts determine likelihood of confusion using a multi-factor test, which includes:
the similarity of the marks;
the relatedness or proximity of the two companies' products or services;
the strength of the registered mark;
the marketing channels used;
the purchaser's degree of care exercised in selecting goods;
the accused infringers' intent in selecting its mark;
evidence of actual confusion; and
the likelihood of expansion in product lines.
However, where initial interest confusion applies, likelihood of confusion for a consumer at the time of sale is not required. The mark must only capture the consumer’s initial attention.
Unscrupulous business operators are able to divert significant business through use of a third-party’s key trademarks in the copy and HTML code, including meta tags and meta description, of a website. This can result in significant loss of sales, harmful confusion, and damage to the trademark owner’s goodwill.
How to Stop Meta Tag Trademark Infringement
Document Evidence of Infringement
One of the best first steps to address trademark infringement is to document the evidence. This would include taking screenshots of the infringing website and its HTML code to record use of the trademarks in meta tags and elsewhere. Other evidence would include:
Actions of confused customers and vendors such as misdirected complaints, communications, correspondence, and product returns;
Increased pay per click (PPC) costs for the business’s trademarks;
Sudden drop in website traffic; and
Sudden drop in sales and sales inquiries.
Send a Demand Letter
After the evidence of infringement and harm has been thoroughly documented. The next step is to send a demand letter to the infringer commonly known as a “cease and desist” letter. The letter should request the immediate stopping of all trademark use, records regarding sales as a result of the infringement, and related information so that a specific demand for settlement can be made. Before sending the letter, you should consider the risk that the alleged infringer files a lawsuit first called a “declaratory judgment” lawsuit. Also, if you delay too much after knowledge of the infringement, that can make getting an injunction (order from the court restraining the infringer from further infringement) difficult to obtain because a trademark owner likely must show “irreparable harm.”
If the demand letter is unsuccessful, then you may be required to file a lawsuit for trademark infringement, unfair competition, and related claims in either federal court or state court. Trademark infringement lawsuits can be very expensive so you should consult first with an attorney competent in handling trademark/unfair competition cases. Our Intellectual Property Litigation overview page provides additional information about these kinds of cases.
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