Today we're going to contrast two recent judicial opinions on the use of a competitor's trademark in meta-tags. Same issues, different outcomes. Let's take a very brief look at each case.
The two companies involved in this suit make spinal decompression devices. Allegedly, Axiom used North American Medical's trademark in its metatags and not in the body of the site. We don't know what kind of metatags (title? keyword? description?) were used. The Court found that Axiom used the trademark in metatags to "influence Internet search engines." "For instance," the Court states,
Accordingly, the 11th Circuit Court of Appeals ruled that this was trademark infringement because using a trademark in metatags to influence engines was a "use in commerce" and likely to cause consumer confusion. evidence in this case indicated that, before Axiom removed these metatags from its website, if a computer user entered the trademarked terms into Google's Internet search engine, Google listed Axiom's website as the second most relevant search result. In addition Google provided the searcher with a brief description of Axiom's website, and the description included these terms and highlighted them.
Standard Process creates dietary supplements. They are suing a doctor for including Standard Process trademarks in metatags. We don't know what kind of metatags are involved in this case either. However, unlike the appeals court ruling in Axiom, this Judge found that
"today 'modern search engines make little if any use of metatags.....' As more and more webmasters 'manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.' Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it."Since search engines don't use metatags, the 7th Circuit District Court ruled that the use of a competitor's trademark in a metatag is not "a use in commerce."
Both cases involve using a competitor's trademark for advertising purposes. However, they represent fundamentally different understandings about how metatags work and the effect, if any, they have on the consumer.
Because the value of using keywords metatags for ranking purposes is nonexistant you could respond to both of these cases with a resounding, "So what?" Why do we care if you can or can't use a competitor's mark in keyword metatags since that is not a viable SEO strategy?
There are three reasons we care about these cases:
(1) While some metatags arent' valuable for rankings, others are very useful. Unfortunately, we don't know what metatags are at issue here. SEO/Ms need to be cautious when using competitor's trademarks to lure clicks. Given the conflicting state of the law, there is risk involved in doing so.
(2) The cases also demonstrate the varying levels of technological sophistication within the legal field. Lawyers and judges are not differentiating between the kinds of metatags, even though this impacts the visibility of the mark and therefore the likelihood of consumer confusion.
(2) These cases may provide insight into how the courts will approach other keyword-triggered advertising issues, such as search engine liability for Adwords, Adsense, and aggressive/abusive SEM (such as trademarked-stuffed "review sites"). In short, we can look forward to many conflicting, poorly conceived rulings with the occasional beacon of clarity.
Attorneys will make out very well. I'm not sure I can say the same for the engines and internet marketers.
Good luck guys!
Best Regards,
Sarah
Sarah, I appreciate your thorough response.
To begin, Danny’s article is intended to dissuade the user from believing that meta tags alone will improve your search rankings, in which case he is correct. In addition, Danny goes on to say, “But what about search engines! The title tag is crucial for them. The text you use in the title tag is one of the most important factors in how a search engine may decide to rank your web page.”
Next, I would recommend reading this analysis, graciously provided to us by Seomoz. It’s called “Search Engine Ranking Factors v.2”, and can be found on the homepage of this site. This document represents the collective wisdom of 37 leaders in the world of organic search engine optimization. Ironically, in this examination of “Search Engine Ranking Factors v.2” the #1 result in the category of “Top 10 Positive Factors” is Keyword Use in Title Tags.
Finally, I believe the evidence shows that the practitioners do in fact agree. Ergo, the judges and lawyers should not defer to the uncertainty of the industry professionals. If the lawyers take this kind of view they will only be contributing to the clear lack of understanding being displayed by the legal system in which they operate. More-so, they will be missing a great opportunity to leverage the collective intelligence of this community for the overall improvement of an inefficient system.
Sarah, just want to clarify a few things. You made the two following statemens in your post:
"Because the value of using keywords in metatags for ranking purposes is minimal at best..."
and...
" There are three reasons we care about these cases: (1) While not valuable for rankings, metatags (at least title and descriptive tags), are important for SEM."
These statements seem contrary to the type of knowledge that seomoz endorses, which is that meta tags do have a "more than minimal" influence on rankings. i think most SEO's would agree with that!
any thoughts?
Well BuddhaBen, I will always defer to the practitioning experts. If I am in error, I sincerely apologize.
My understanding, and I'm happy to be corrected, is that in the grand scheme of influencing your ranking on SERPs (not in communicating to your readers/consumers!), that description and title tags don't provide a lot of value. The real power to influence your rankings comes from putting the right keywords in the body of your site, getting links to your site, among other things
My information about the relative impotentence of metatags to improve rankings comes from, among other things, this article by Danny Sullivan.
Again, I never meant to imply that metatags weren't important for other reasons (getting conversions, educating your readers, finding/creating consumers etc etc). In fact, that was one of my criticisms of the Standard Process Court's opinion. It seemed to disregard the other important, non-ranking effects of metatags.
Lastly, I think it's great that we're having this debate about metatags in the context of my post. It goes to show you that how can we expect judges and lawyers to "get it right" if the practitioners don't agree? The technology continues to evolve, the secret algorithms continue to evolve, and the industry terms of art aren't clearly defined, further inhibiting productive conversation about the issues.
Thanks for your comment!
It sounds to me as if the first case was an example of using the Meta Description and the second a cas eof using the Meta Keywords. While neither strongly impacts rankings, the former certainly impacts the snippet used by Google in the search results themselves. If that happens to be the case, I would claim that these two rulings seem both prescient and nuanced.
I believe that creating sufficient confusion between the trademark owner and his/her competitors remains the central issue. If a user sees no reference to your competitor in your title or snippet (either in the paid search or natural listings), you should be relatively secure.
However, it is important to note that there is no place on your web page, aside from the useless Meta Keywords, to place your competitor's trademarked terms without running the risk of those terms being displayed iny Google's snippet. Thus, you are far better off using anchor text of inbound links to manipulate the result and rank for competitor trademarks than using that text.
Even more of a caveat, though, is that you need to be careful in the use of that anchor text pointing to your site. You cannot simply link your competitor's trademarked term to your own website: there is no doubt that this would cause sufficient commercial confusion for a user who may click on the link - even if your intent was only to manipulate the search results.
I know this is an old post but the issue just came up for an SEO client of mind. Apparently one of his competitors is using his company name in their meta description in an effort to take his traffic.
While this article shed some light on it, I'm still wondering whether or not this is illegal. I guess the point is, it's kind of an SEO gray area.
Obviously, it's unethical, but unethical certainly doesn't seem to stop people. Are there any more recent cases on this matter?
Cheers!
WTF?!!!!
(fyi.. this is a hugely important issue..)
Ms. Bird, Esq.,
i thought stare decisis was Playboy v. Club Love?
on trademarked/copyrighted keywords used in meta tags...
(that's the one i've used when hired as an expert witness before)
p.s. i can scientifically prove that "a search engine" , does use the keywords field in a meta tag. If anyone is going to try and get the 7th district's ruling tossed, i'd like to help. geesh! that ruling is crazy!
Hello Sarah,
I completely agree with the first point. Though Search Engines ignore Meta Tags, users do not neglect them. Often it is the meta tag which leads the user to click a particular result in SERPs.
while this is an old post its still fascinating reading for me, I have just put something together around the ongoing legal issues surrounding the use of competitors brands in ppc advertising which is quite strongly linked to this kind of thing:
www.ecommerceadviser.com/ppc/competitors-keywords-trademarks-adwords/
As with a lot of SEO issues its where the line is going to be drawn and where the blaim will land, is a search engines TOS enough to pass the buck onto the site owner when they are the ones coming up with the indexing formula
Sarah, Let me see if I can make some sense:
1. In the first case the use of the meta tags were possible in the title and description areas as indicated by the statement:
In addition Google provided the searcher with a brief description of Axiom's website, and the description included these terms and highlighted them.
Regardless of the fact that they were ranking below the trademark - the fact that they were using a competitors trademark in their own marketing material immediately should have been considered trademark infringement.
2. In the second instance, I am afraid that the ruling in my opinion is not ideal. The judge did not question which meta tag, did not adress the function of the meta tag, and didnt actually bring in any expert witnesses to clarify their stance. In effect, the judge has made the assumption that the "keyword" meta tag is being used. If this was the cause for dispute, then fair enough - but :
"today 'modern search engines make little if any use of metatags....."
This statement is rubbish - we all know that the desc meta tag and the title tags are being used be all search engines to display sunmaries of content. These tags form the core bulk of SERPs.
Therefore the use of these two tags are like taking out a paper advert and asking the paper to print a headline that uses the competitor tm.
Also note: meta search engines werent taken into consideration either - these do use the keyword tag at times, although there was no call to - but regardless, future and possible alternate use should have been considered.
Rishil,
Way to really engage the material here. I'm thrilled.
I think what you're struggling with is what a lot of people are struggling with. That is, no one appears to know what metatags were used in these cases. And if you don't know what technology was employed, the rulings surrounding those technologies are vague and create more confusion in the law than clarity.
As for the first case, Axiom, I agree that the likely candidates would be either title tags or description tags (or both). Something interesting left out entirely from the opinions is that SEs sometimes create their own descriptions and ignore meta description tags. Now, in the first case where we know that the trademarked term did not appear in the body of the website, it is highly unlikely that the SEs came up with a description that involves a term not in the body of the website. In the second case, though, where the trademarked term was discussed in the body of the website, it is possible that the SE substituted its own description. Regardless, the lack of precision in the rulings confuses judges, attorneys, and SEO/Ms.
As for the second case, Standard Process, I think the Court did something important, which is to acknowledge that metatags don't affect rankings, something previously misunderstood and unfortunately embodied in other cases. However, I completely agree with you that the fact that metatag content (at least for title and description tags) is used by search engines (at least to some extent) to create content for SERPs seems to get left out of the analysis. For accuracy, the discussion should include both the impact on rankings and the impact on what is displayed in the SERPs.
CONFESSION: The Court in Standard Process is not as clueless as I inadvertently made him out to be. On this post I focused on comparing the different treatment of metatags. I left out the second court's discussion of "the likelihood of confusion." This might address your concerns and the concerns of others who've commented:
First, the Standard Process Court ruled that the particular use of metatags were not a "use in commerce." Since it's not a use in commerce, there can be no infringement, as I described in the post.
BUT THEN, the Court went on to make a second point about the "likelihood of confusion." It said that because this doctor is actually selling the trademarked goods in question (the real things, not knock-offs), there would be no likelihood of confusion in this case anyway. In other words, even if the metatags made the trademark terms visible to the consumer, that's okay because the website actually delivers what it is promised, i.e., the trademarked goods.
Now this secondary ruling about the likelihood of confusion isn't binding on other courts. It's what fancy-schmancy lawyers call, dicta. In other words, since the Court made his decision based on other factors (not a use in commerce), the rest of the arguments (no likelihood of confusion) are not necessary and therefore not binding. Judges often include dicta to hint to lawyers that it's not worth appealing this issue because It would make the same decision based on other criteria anyway.
I apologize for leaving out this portion of the Standard Process Court's opinion. I'm surprised and pleased about the level of engagement with this dry and confusing material.
Lastly, I think your point about other SEs and alternate/future uses is really interesting. Again, the lawyers/judges aren't operating on nearly the sophistication necessary to create really subtle, accurate, and useful opinions. Confusion abounds.
Thanks so much for this discussion! I hope that those people in a position to influence the law find it useful as well. We need more practitioners weighing in on internet law issues.
It is very funny actually. We were getting more traffic for other company name search. A lot of people were searching lenders and we were ranking #1 for all the lenders, we had everything for name, in text,titles, links etc but all were community created, feedback kind pages.
There were many companies which used to threaten us to sue us for ranking above them for their name :) and most of the pages had negative feedback about them. Some tried to sue us too but couldn't proceed further.
Look at another example here:Vodafone and Airtel two major players in telecommunications in India .. visit airtel.com and it will take you to vodafone.com :), what will you say about this now ?
intersting post sarah. as you noted, lawyers are going to make a bundle in court exploiting what are still (sadly) gray areas for most business people regarding online marketing.
question for you - is there every a point where this stuff becomes settled law? i'd like to imagine a future where don't have to worry about one judge's / jury's lack of understanding in what should be a pretty cut-and-dried matter (i.e. the ranking value of a meta keywords tag).
regardless, i think a more constructive conclusion that comes out of these cases for the average person looking to market their site is "focus on making your own brand so strong that you never have to mention your competitors. make them mention you."
Google UK recently adopted the US Adwords policy of allowing bidding on competitor terms but barring use of trademarked terms in ad text (previously, one couldn neither bid on trademarked terms nor feature them in ads).
Not surprisingly, it's been a bit of a bun fight since the change. We've steered clear of it to let it settle down first. In our field, there's one big player that has really thrown their toys and are saying they're going to sue everyone for everything (including for bidding on their name, even though Google allows it). A contentious field, for sure!
I'd actually tend to agree with the first ruling. I'd like to think of one valid reason for a site to place a competitors trademarked terms in the meta tags, and the only one is intent to rank or market for those terms. So, regardless of how the search engines treat the meta tags, intent should be looked at in making the ruling. And of course, there are more than just the Google/Yahoo/MSN-Live search engines out there, and so to say definitively that no search engine/web site (even beyond search such as bookmarking sites) makes use of the meta tags is not possible.
Hi Sarah,
Great post!
I have actually had companies have their attorneys send me cease and desist orders just for ranking high under their terms.
I am sure this will become more of an issue as time goes on...
~Brett