Today's eCommerce lesson: There's no upside to using others' trademarks in your website meta tags
September 22, 2009

Those who have a passing familiarity with website design are probably familiar with the concept of meta tags. Meta tags are pieces of data included in the HTML code of a webpage that provide information regarding the content of the page. You can view the code of a webpage you are visiting by clicking the "view" menu and, in IE, selecting "source," or in Firefox, selecting "page source."

Keyword meta tags have been used frequently in the practice of SEO, or search engine optimization. This essentially is an industry designed to get a webpage to show up higher in search results for various key terms and phrases in order to make it easier for the website to be found by customers. SEO practices frequently included loading the meta tags of a site with numerous keywords and phrases in an effort to improve a site's search performance for those terms.

Click below for a discussion of what happens when trademarks are used in connection with this practice, and why website owners would be best served avoiding such use.

Sometimes, however, a website owner that competes with a trademark owner would want to appear in search results for the trademark owner. One way to achieve this is to purchase advertisements on search engines that appear in responses to searches for the trademark. This practice has been challenged in courts over the past several years, and such cases have proven difficult for trademark owners to win. In fact, today the Advocate General recommended the European Court of Justice find such activities not per se trademark infringement in a case involving Google and Louis Vuitton.

Another manner by which companies have attempted to improve their search engine results to appear closer to their competitor's websites is to include the competitor's trademark in the meta tags of their webpage. This practice has also been challenged in courts over the past decade or so, with mixed success. The difference here is that because the meta tags are invisible to the typical internet user, courts sometimes look a bit more closely at this behavior, as its only purpose appears to be to "piggyback" on the goodwill of the trademark owner to benefit the website operator. Cases regarding this issue have been cataloged by Professor Eric Goldman at Santa Clara University School of Law. He has also repeatedly pointed out that it appears, based on comparing search engine results, that most search engines ignore these meta tags in determining their search result order.

Well, now Google has confirmed this theory. In a post today, Google confirmed that it does not (nor has it for many years) considered the content of keyword meta tags in its search algorithm. As stated by Google:

Q: Why doesn't Google use the keywords meta tag?
A: About a decade ago, search engines judged pages only on the content of web pages, not any so-called "off-page" factors such as the links pointing to a web page. In those days, keyword meta tags quickly became an area where someone could stuff often-irrelevant keywords without typical visitors ever seeing those keywords. Because the keywords meta tag was so often abused, many years ago Google began disregarding the keywords meta tag.
In the video, Google also asks that trademark owners stop suing those who use trademarks in keyword meta tags, quite simply, because they have no effect on the search results. It seems the better advice is the reverse, however. If Google (and other search engines) aren't using keyword meta tags in their search algorithm, there is no upside to putting a competitor's trademark in your meta tags. Instead, there is only the possible downside that the trademark owner may bring an infringement suit against you for their use.
So, today's lesson in eCommerce and web design: Don't use other companies' trademarks in your meta tags. There's no benefit from an SEO perspective and a potentially substantial downside if you end up getting sued.
HT: Eric Goldman (for the Google post) and IP Kat (for the ECJ recommendation).

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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.


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