Pattishall IP Blog

February 28, 2011

Use of a Trademark in Metatags May No Longer Lead to a Nearly Automatic Finding of Trademark Infringement

Filed under: Internet, Litigation — Tags: , , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 2:05 pm

Categories: Internet, Litigation
Tags: Metatags, Federal Litigation, Trademark Infringement, Phillip Barengolts

by Phillip Barengolts, Trademark Attorney

Ever since search engines became the primary entry point to the Internet, website operators have been trying to take advantage of search engine algorithms to attract more traffic and raise their placement in search results.  Many of the earliest search engines would read the metatags[1] embedded in a website’s metadata to aid the search engine in determining that website’s responsiveness to a search query.

Thus early courts dealing with allegations of “infringement by metatag” were persuaded that use of the plaintiff’s trademark as a metatag lead easily to a conclusion of trademark infringement.  The most prominent and most often cited case holding this was Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), finding that such use could cause initial interest confusion, i.e., actionable confusion in attracting searchers to a site even if the confusion was subsequently dispelled.  Many courts followed this reasoning. (more…)

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