Metatags are terms within a Web site that describe the site's content. The more often a search term appears within a Web site's metatags and text, the more likely that an Internet search engine will put that page at the top of its list of search results.
Courts have ruled that "using another's trademark in one's metatag is much like posting a sign with another's trademark in front of one's store." You can use a trademark as a metatag when the trademark truthfully identifies a product, to advertise that you are authorized to service someone else's products or to place truthful comparison claims on your Web site.
Use of another's trademark within one's metatags is acceptable if that trademark is used to describe a person, place or attribute of a product or service and there is no reasonable alternative description. A classic example is comparative advertisements, such as a Pepsi vs. Coke taste test: Pepsi could not describe the attributes of its competitor without naming Coke.
Courts generally take a dim view of the use of another's trademark within the metatags of a Web site, however, even if a business believes there is a legitimate basis for doing so.
Stay within these guidelines to minimize the likelihood of a trademark infringement complaint:
- Use the trademarks of others only to truthfully identify goods or services associated with that trademark's owner.
- Limit the number of times any trademark owned by another appears in your metatags. The more often it appears, the more likely a court will find that you attempted to lure in the trademark owner's potential customers.
- Conform your use of another's trademark to these standards: The product or service represented by the trademark cannot be readily identified without it; you only use only as much of the trademark as is reasonably necessary to identify the products or services; and the use does nothing that would suggest sponsorship or endorsement by the trademark holder.
- If you service goods made under a trademark owned by another, do not rely solely on that fact to include that trademark within your metatags. Get the trademark owner's endorsement.
William F. Lang IV is a lawyer with Eckert Seamans Cherin & Mellott LLC.