What is a “Meta-Tag” and what does it mean to me?
Spring 1999
In the last two years, the emerging growth of the Internet has all but overshadowed every other avenue of business commerce. It seems like everybody wants to jump on board whether they fully understand the implications or ramifications of doing so. Now, the latest and greatest catchword on the Internet appears to be e-commerce. For those of us who are new to the world of Internet, you are sure to learn all about such things as ISPs (internet service providers), domain names, search engines, linking and framing, Java®, HTML and meta-tags. Each one of these items is significant in setting up an effective web site, and can also raise intellectual property infringement and liability issues for those who are not careful.
Briefly (and in layman’s terms), a meta-tag is an identifier embedded in a web page which can be accessed by systems searching the Internet for specific information (i.e. a search engine looking for information relevant to a requested search term). You will not see a meta-tag when you download the web page, although an interrupted or otherwise incomplete download may reveal the meta- tags embedded on that web page.
As can be imagined, web page designers utilize these meta-tags as ways to increase the likelihood that a given web page will be retrieved during a search for information in some way related to the web page contents. For example, if we requested information on Pepsi®, we would enter the term into a search engine and wait for the result. The search engine would then take the search term and access its database of Internet sources and search for locations containing the term Pepsi®. The search engine might also have an index to web sites based upon a search of the meta-tags contained in the site. This often may entail the use of a web crawler program which seek out Internet sites for review and/or inclusion in a search output. In this way a search request may retrieve sites that contain the term Pepsi® as part of their meta-tag list. Accordingly, by entering the term Pepsi® as a meta-tag, a web page developer may increase the chances that someone searching the Internet for information on Pepsi® will be brought to that web page and thereby avail themselves of the products and/or services offered on the web page.
In this way, a web site is often compared to a storefront. Following through with the storefront analogy, meta-tags may be compared to display signs placed in one’s store window with the hope that passers by will bother to enter the shop and purchase their goods. Of course, the key distinction between a real sign in a store window and a meta-tag is that the searching computer is the one who is the target of the meta-tag — people may never even know that the meta- tag was present. Accordingly, meta-tags may be utilized as an additional form of advertising on the Internet and, if used properly, may result in a substantial number of visitors to one’s web site.
Now one might ask how this would affect you? If a business is generally attempting to utilize a web site to sell their products or services on the Internet, it would usually want to attract interested web surfers to their site rather than having them view their competitors site. Conversely, you may benefit by having any web surfer who visits your competitors site also visit your site. This is where meta-tags come in to play and how they can help or harm you and your business. Since a meta-tag is an identifier that a search engine may use to bring surfers to your site, one might think why not use may competitor’s trademark(s) as one of my meta-tags so that each surfer who types in the competitor’s trademark(s) in the course of their search will be linked to my site? As you may already imagine, if every store selling a non-Pepsi® product were permitted to advertise Pepsi® as a means of enticing Pepsi® drinkers into their store only to attempt to sell them a competing product, Pepsi® would not be pleased to say the least. In fact, Pepsi®would likely sue for infringement of their trademark. Likewise, web sites utilizing trademarks in their meta-tags have found themselves increasingly becoming the targets of a trademark infringement suits by the registered trademark holders of their meta-tags.
So where is the problem? You are not advertising your product as their product and you are not attempting to confuse your products with that of a registered trademark holder. However, as the use of the trademark brings web surfers to your site, trademark owners have argued, in some cases successfully, that use of a trademark in a meta-tag is infringement. Trademark owners have been working to prevent the improper and non-licensed use of their trademarks in web sites. For now, the courts hearing these cases have been consistent in ruling that improper and non-licensed use of trademarks in meta-tags may be considered an act of trademark infringement. Accordingly, as a web site owner you need to be aware of how you use your web site meta-tags and other page identifiers to make sure you are not infringing on a trademark owner’s rights and, alternatively, trademark owners need to be aware that others might be infringing their trademark rights.
A final note: the law as it relates to the Internet is extremely fluid. As the Internet is a new frontier with as of yet unknown possibilities, the current view on meta-tags as well as other areas of law as applied to the Internet may well change more than once. Therefore, we will endeavor to keep you informed of variations to this fast changing area of law as we become aware of them.