Embedding A Competitor’s Slogan In Your Website’s Meta Tags: Permitted Or Not?August 25th, 2015
What is acceptable to use to get noticed in search engines.
PASCAL LAUZON, partner, lawyer and trademark agent | Montreal
One of your competitors is using a slogan or trademark that benefits from high public recognition. In order to capture a greater share of web traffic, you decide to incorporate the same slogan into your own website’s meta tags…
Meta tags are words or short phrases inserted into the source code of a website. These markers aren’t visible on the website as such, but they are detected and noted by search engines when they crawl the web and index websites. The presence of meta tags that correspond to the key words of a web search will identify the page amidst the most relevant search results.
In this context, it’s very tempting to copy a successful competitor’s meta tags or insert the trademark and slogan of that competitor into your own meta tags to attract some of the competitor’s clients to your site. But is that permitted? Generally speaking, the answer is yes.
An Important Decision
In a recent decision of the Federal Court (Red Label Vacations Inc. v. 411 Travel Buys Limited, 2015 FC 19), the defendant, Travel Buys, used the meta tags of the plaintiff, Red Label Vacations (including spelling errors), to obtain a better ranking in internet search results for travel agencies. Among the meta tags, the defendant also included the plaintiff’s registered trademarks.
On the issue of potential copyright infringement, the Court was of the opinion that meta tags made up of short descriptive phrases and generic travel industry terms were not sufficiently original in order to constitute a protectable work under the Copyright Act. It must however be carefully noted that this is not a general rule and meta tags can be protected by copyright if they are sufficiently original. Whether or not a work is sufficiently original is a subjective question that is often difficult to answer with a high degree of certainty.
On the issue of using trademarks in meta tags, the Court held that the marks had not been “used” as per the Trade-marks Act because they were not visible. (The mark must be shown in the execution or the promotion of the services in order to correspond to the definition of “use” in the Act.) In fact, the search engine that detects a trademark in the meta tags of a web page and that subsequently includes that page among the results is only suggesting it along with others and does not cause confusion as such. Confusion is required to establish passing off or trademark infringement. If a web user accesses a website that includes the meta tag of another business and does not see this mark or any other element that could lead to believe that he has accessed the page of that other business, the web user will know that the search has taken him to a different site, and there will therefore be no confusion.
Are you considering a marketing campaign using meta tags that correspond to slogans or marks of your competitors? If so, contact us so that we may guide you through the process.
Pascal Lauzon is a member of BCF’s Internet strategic team, which offers our clients strategic advice regarding their online presence. This is a continually evolving environment which calls for the expertise of a multidisciplinary team like that of BCF.