Metatag Suits Should Now Be Dropped

Although SEO specialists have long denied that metatags matter, there have been lawsuits over them for a number of reasons, including trademark infringement, attempt to divert business, and even defamation.

Dany Sullivan of Search Engine Watch outlines some of the major American suits over metatags.

Google’s Matt Cutt publicly confirmed yesterday for the first time that their search algorithm does ignore metatags. See the video here.

Eric Goldman of Santa Clara Law says,

Although occasionally judges have gotten it right (see, e.g., Standard Process v. Banks). most courts still treat the presence of a third party trademark in keyword metatags as essentially a per se trademark infringement–even if the keyword metatags didn’t (and couldn’t) change the search results ordering or any consumer’s behavior…

Now that we have confirmation that the dominant search engine disregards keyword metatags, let’s hope judges do the same.

And in anticipation of judges hopefully dismissing these cases, would-be plaintiffs should realize the futility of metatag cases and drop them so we can move on to more interesting Internet law cases.

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Comments

  1. I think that you have mixed up two concepts: keywords in metatags, and bidding on trademarks using Adwords or a similar program.

    Metatags may not influence the google spider, and so trademarks in the metatags are probably irrelevant.

    On the other hand, bidding on trademarks as keywords and trying to rank for competitors trademarks is a different story.

    In Europe, Google was found not to be liable for its role as accepting bids on keywords that were trademarks,

    http://www.cbc.ca/technology/story/2009/09/22/tech-internet-google-advertising-eu.html?ref=rss

    But this isn’t the end of the story.

  2. Despite the apparent distinction between adwords and metatags, the latter are still subject of litigation dispute.

    See the resources linked above, or a previous post of mine here about the Venture Tape Corp. v. McGills Glass Warehouse case last year, where trademarked metatags as white-on-white text were the subject of the complaint and the defendant was held liable. A reasonable summary of the case can be found here.

    Metatags do appear to be a issue before the courts (at least in some jurisdictions in the U.S.), at least for now.

    Ad-word trademarks, like the ones you point to, are far more interesting, and something perhaps courts should more closely scrutinize once they get over the non-issue of metatags.

  3. Litigation aside, a little clarity on meta-tags here. There are lots of meta information tags available for website code, with meta-keywords being only one.

    Meta-description tags remain very important, and the basis for the abstract snippet that Google shows under the page title. Putting a trade-marked term in one’s meta-description tag remains a potential tactic to come up in the search results.

    Judges will need distinguish *which* meta-tags are in play before dropping lawsuits.

  4. Yes Steve, thanks for the clarification. Historically these have also been the most common form of metatag, specifically used for SEO through the 90’s.

    Goldman also points this out in his critique of the Venture Tape decision:

    As usual, the judge doesn’t know or seem to care that there are multiple flavors of metatags, but the opinion treats them as keyword metatags.

  5. The Google phenomenon that has been more in the courts lately than metatags is the AdWords program, by which people can bid on the right to turn up on searches made for other people’s trade marks. The legal advisor to the European Court of Justice has just said that AdWords does not violate trade mark law – apparently because the program does not use the trade mark in way visible to the public, or sell goods or services to the public.

    In other words he takes a narrow view of what it takes to ‘use’ a trade mark (though of course local legislation will affect the legal analysis.)

    Apparently the Court agreed with its legal advocate about 80% of the time.

  6. Most of this metatag jurisprudence in the US is just bad law from technically confused judges. The infringement analysis has always been 1) is there use (as a trademark) and 2) is there a likelihood of confusion. If you can’t see metatags then they aren’t being used as a trademark (they don’t mark goods or offering of services). If you can’t see metatags then there is no likelihood that someone will be confused. This applies to initial interest confusion as well.

    To be on the safe side I would just include comparative claims in my meta description: lasts longer than brand X.