Written by Michael Coyle on 08 February 2003« Return to Reading Room
One should take care when setting up to a web site.
The Net user must clearly transported from your site to the linked site, rather than having the linked site imported into your own website, otherwise you may run the risk of being faced with an action of trademark infringement or passing off. What is a meta tag? A meta tag will be used by a search engine to describe the content of the website. There will be keywords that are contained in the meta tag which is used to index the web site. Thus, following a search request, these keywords are used by the search engine to find out about the site. The meta tag will be invisible to those who are browsing the web site. Nevertheless, it is possible to seethe meta tag by using internet browser software. Thus, looking in the "source" section under the "view" menu" of the Internet Explorer will show the surfer the meta tag that is being used for that particular web site. Web sites will incorporate as many keywords as possible so that search engines will match the site as highly relevant. Search engines like AltaVista and Lycos, recognise the difficulties with searching on the basis of meta tags and do not increase ratings on the basis of meta tags. Similarly others may infringe your trademark by increasing ratings on the search engine by putting key words on the front page of a website in the same colour as the background. Some of the search engines read the front page of a web site rather than its meta tags and will therefore recognise those keywords. UK case law. The first major UK case to look at the issue of trademark infringement by way of using meta tags in the case of Road Tech Computer Systems v. Mandata. Here the court ruled that a trademark is a trademark even if it can only be read by a computer. This case was the first to indicate how the law will approach the issue of meta tag abuse. In this case, Mandata had incorporated its major competitors trademark in their web site as a meta tag, which, as a result, attracted their site to surfers when interested in the rivals brand. In a summary judgement Road Tech was awarded the amount of £15,000 damages and costs estimated in the region of £80,000 for trademark infringement and passing off. Mandata had also given the undertaking that it would cease to continue diverting business from their main competitors. The High Court had criticised the blatant infringement of Road Tech's intellectual property rights. The most recent case of trademark abuse by unlawfully using a meta tag was in the case of Reed Executive plc v. Reed Business Information Ltd. Reed (the employment agency) brought a claim for trademark infringement and passing off against Reed (the publishers). The Defendant established a web site totaljobs.com in order to advertise job vacancies. The meta tags used by the site included "Reed Business Information" and "Reed" in a banner advertisement through the Yahoo! site. The entry in the web directory referred to the site as being provided by Reed Business Information. (Both companies had been using the name Reed for 30 years or more). Pumfrey J said activities infringed s 10(2) [similar mark - similar goods but could not decide if it infringed s10(1). The use of a trademark as part of meta tag was trademark use because it resulted in the website being treated in a manner only appropriate to a website owned by the trademark owner - thus use could amount to infringement and passing off use of Reed (albeit invisibly) to trigger banner advertising constituted infringement and passing off. The defendants could not rely on s11(2) [own name defence] because use of its name on a website did not accord with honest practice in that jobseekers were being deceived into believing its was the claimants site and the defence was not available because of the invisible nature of the meta tag. Maintaining Vigilance of Meta Tag Abuse. It is important that you regularly monitor for meta tag abuse and unauthorised use of your trademark and ensure that custom is not being unlawfully diverted to your competitors. It is important that you ensure that your trademark is registered to facilitate any action that you may wish to take against others infringing such right through meta tag abuse. It is important that you take the following action:
* Check whether your site links to other sites, and if so, ensure that you have the appropriate permission. * Check whether your meta tag consist of any traders trademarks or unregistered brands. If you do, ensure that they are removed. * Check at regular intervals to see whether your brands are being used by competitors to attract business to their sites. If they are, consider objecting and requesting the removal of the infringing tags. You have the backing of Road Tech and the Reed case. * Appoint an officer within your business and ensure that they review your website regularly and keep up to date with the sites content.
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