Metatags and infringement: Eleventh Circuit says, “Yes”

Originally posted 2013-03-15 09:57:32. Republished by Blog Post Promoter

Search Engine Land:

Eric Goldman reports that an 11th circuit, US Court of Appeals has upheld a district court’s decision that the use of trademark[-protected] terms in meta tags can cause confusion and thus can constitute trademark infringement.

North American Medical Corp. v. Axiom Worldwide, Inc. docket number 06-01678 CV-JTC-1 (PDF) doesn’t specifically say if the trademark[-protected] terms were in the keywords meta tag, description meta tag or some other meta tag. But the ruling is that Axiom, who used North American Medical Corp’s trademark in their meta tags, is … [a] trademark infringement. The specific keywords were “Accu-Spina” and “IDD Therapy,” and Axiom, at one point, ranked well for those terms in Google.

The court document does say, “Google provided the searcher with a brief description of Axiom’s website, and the description included these terms and highlighted them,” which implies the tag was in the meta description. In that case, if Google highlighted those terms and the page did rank well for the terms, then it is logical to see why a court would find confusion in that.

Eric Goldman is dead on by saying: “The court does not exhibit any understanding of anchor text or the fact that Google sometimes automatically assembles search result descriptions using third party content (such as DMOZ).”

Well, one would hardly expect the court to. The court, as a general rule, has no idea how the Internet really works, and tends to rely on the court’s young clerks to explain it to the court. But usually the court errs in this regard.

Indeed, so little Internet-oriented jurisprudence is based either on true comprehension of how Internet websites and search engines operate, technically, or empirical data of how it is actually used, that the term “virtual reality” begins to take on a deeper meaning as one ponders these facts.

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

2 thoughts on “Metatags and infringement: Eleventh Circuit says, “Yes””
  1. Fascinating. (1) It’s well known in the webmaster community that Google’s algorithm ignores metadata. (2) One would think that, on its face, there is no possibility of consumer confusion, because — by definition — HTML meta data is not visible to the user.

  2. Ron:

    Read the end of that opinion. It’s a doozie. It questions whether the presumption of irreparable harm in trademark cases (once you show likelihood of confusion) is still proper after the Supreme Court decision in eBay v. MercExchange.

    The 11th Circuit, while it upheld the finding of likelihood of success on the merits, vacated the preliminary injunction so the district court could consider this very point!

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