Federal Internet Law & Policy
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IP :: Search Engines :: Placement, Trademarks, Keywords and Metatags Dont be a FOOL; The Law is Not DIY

There are three closely related sets of cases that involve the use of trademark keywords to direct internet users to competitors online content. These involve

  • Metatags (trademarks used to manipulate search results),
  • Keywords (trademarks used to display advertisements), and
  • Pop-Up Ads (trademarks used to trigger pop-up ads).
  • Paid for Placement

    On June 27, 2002 , the FTC transmitted a letter to the major search engines out of the concern that those services were "failing to disclose that advertisements are inserted into search engine result lists." In other words, an individual comes to a search engine, inserts "widgets" and gets back a result with the ACME Widget Company on the top. The user believes that this listing is presented because it falls within the proper criteria of the engine. What the user does not know, in this fictitious example, is that the listing is actually on the top because ACME has paid the site in order to be listed at the top. While the FTC did not elect to take action at that time, the FTC did transmit letters to the major search engines suggesting that proper disclosure might be in order .



    "Meta tags" are pieces of the Hyper Text Markup Language ("HTML") source code which contain keywords used to describe the contents of a web page. There are three types of meta tags: (1) descriptive meta tags, which describe the content of the document; (2) keyword meta tags, which are used by internet search engines to help determine whether a particular web page is relevant to a search term entered by a user; and (3) robot meta tags, which indicate to search engines that certain web pages are not to be indexed by the search engine. Meta tags are invisible to Internet users but are used by search engines to index websites. Upon indexing relevant websites, a search engine uses algorithms to process the keywords in the meta tags to produce a search results page that displays links to relevant websites in a list typically in order of decreasing relevance. [Wentworth]

    This gave a few of the bright and the daring the brilliant idea of inserting the trademarks of their competitors into meta tags so that when search engine users type in that trademark-keyword, the results will display the competitors site and lead that individual to the competitors site instead. It's a cute trick. It's hidden from site so they can't get caught. Neat, huh?

    Generally courts have had little patience for trademark infringing metatags. See

    There have, however, been decisions to the contrary where the use of a third party's trademark in a metatag is appropriate and permitted.

    Keyword Advertising Cases

    With advertising programs like Google Ads, an advertiser can purchase keywords and when an individual types those keywords into Google or when those keywords are on a webpage where Google Ads are used, the advertiser's ad will appear. Cybertelecom uses Google Ads; you can see them on the left column and you can note that the advertisements that appear are generally relevant to the page you are viewing. Google knows the words on a webpage and attempts to generate relevant ads based on those words.

    In these cases, plaintiff-trademark-owners claim that defendant-advertisers have improperly purchased the use of plaintiff's trademark as a keyword to use in the Google Ads program. In other words, if some third party blog purchased the keyword "Cybertelecom," which resulted in an ad appearing for that third party blog, Cybertelecom might throw a hissy-fit.

    The courts have struggled with these cases. Clearly the defendant is (allegedly) using the trademark, but is it "in commerce," and will in generate user confusion. Some courts conclude that the use of the trademark is entirely behind the scenes, that the computer-user doesn't see this, and therefore its not "in commerce." Other courts say "come on!" The Defendant is clearly using the mark, taking the benefit of the reputation or knowledge of that mark, to cause people to see Defendant's advertisement for some good or service. Of course, Eric Goldman points out that this is a bit akin to placing generic aspirin right next to ACME Trademark Aspirin at the grocery store, and this doesn't cause to much trouble (or maybe it should! Someone call the lawyers! ACME is getting screwed!).

    If you can get past whether the use of the trademark is "in commerce," then the problem is whether it causes any confusion. If you visit the Cybertelecom page for Comcast, and a Vonage ad appears in the Google Ads, are you going to be confused that the Vonage Ad has something to do with Comcast. The courts generally conclude, no, there is no confusion here.

    Circuit Court

    District Court


  • American Airlines And Google Settle Keyword Advertising Spat, Techdirt 7/21/2008
  • Keyword Metatags and Keyword-Triggered Ads Don't Create Initial Interest Confusion--Designer Skin v. S&L Vitamins, Tech & Marketing Law 6/6/2008
  • Court Slams Competitive Metatagging and Keyword Advertising--Soilworks v. Midwest Industrial Supply, Tech & Marketing Law 8/28/2008
  • Related Issues

    Displaying Back Term: It is not a trademark violation where someone comes to a search engine, types in a trademark, and the search engine result page displays "You typed in [trademark term]" along with results; the mere redisplay of the typed in term does not cause consternation. [Hamzik Sec. III.a.] (The fact that the website exhibited (displayed back) the search phrase entered by the computer user does not transform the Defendant's actions into a "use" within the Lanham Act. Defendant cannot be held responsible for Plaintiff's own actions in typing the words "dating ring" in the website search function").

    Displaying Results when Trademark is Entered: "Case law makes it clear that merely displaying alternative products in response to a computer search on a tradename is not a Lanham Act use. See 1-800 Contacts, 414 F3d 400 , 409- 411 (2d Cir 2005); Rescuecom Corp v. Google, Inc., 456 F Supp 2d 393 (ND NY 2006); Merck & Co. v. Mediplan Health Consulting, Inc., 425 F Supp 2d 402 , 415-16 (SD NY 2006). Akin to the situation addressed by the Second Circuit in 1-800 Contacts, "it is routine for vendors to seek specific 'product placement' in retail stores precisely to capitalize on their competitors' name recognition." 414 F3d at 411." [Hamzik Sec. III.a.]



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