The age of technology

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Introduction:

The age of technology has experienced dramatic growth in recent years, and the use of search engines has transformed the Internet from a primarily passive environment used for email, newsgroups and mailing lists, to an interactive, user- enabled universe filled with vast amounts of information.

Search engines function to organize information on the Web and help users to locate information. Web users utilize search engines such as Yahoo, WebCrawler, HotBot, Alta Vista, etc. to locate Web sites that match their particular interest.

For the vast amount of available information, there is a great need for efficient methods of associating Web pages with each other. Each search engine generally uses a specific kind of software, usually called a spider or crawler, to gather the addresses of Web pages available on the Internet. Hyperlinks, frames, and meta-tags are just a few other associational tools currently available to the search engines to set the result for desired query by the user. These programs, in turn, index text on the Web pages, thereby enabling the search engines to associate a user's keyword query with the indexed Web pages.

In addition to analyzing the displayed text, the titles and the addresses of Web pages, search engines make particular use of meta-tag. Meta-tag is a code hidden from normal view and located within a specially designated portion of the HTML code which generates the Web page.

Every person is free to use the trademark in Meta tags and in the content of his or her own Web site. But when a person uses another party's trademarks on his or her site without authorization than the problems arises.

Lawyers around the world know the rules of the copyright issues, trademarks and their application under the traditional ways of property. As a lawyer in the present scenario where man is nothing without the technology one cannot deny the internet legal challenges. In addition, there is no doubt that the traditional ways of property are perfectly admissible in the internet field and the best proof of it.

The aim of this research paper is to explore the concept Meta tag and establishing its point links with the legal terms of trademarks. Nowadays no one can neither denies the existence of copyright matter in the text published in any web page, nor even the trade marks right involved in those pages in front the any element that can gather the requirements of these kinds of distinctive elements.

Although there have been many of the lawsuits about Meta tagging have had place in countries like USA and UK, this article is going to discuss those case laws. With some brief references to the American and the Australian case laws our aim is just to explain the concepts of Meta tagging within a legal context of trademarks.

Meta Tags:

According to Oxford's Concise Dictionary the expression "meta" stands for something

"of a higher or second-order kind”.

The term META in metadata, which means data about other data. Search engines use META tags to help determine the content and value of your Web page content.

A META tag is an optional line of HTML code in the HEAD section of your document. The tag's actual content provides descriptive information about your site, but isn't displayed by the browser. HTML specifications don't define the function of META tags, only their format. When Meta tags were first introduced in HTML 2.0, these keyword and description functions were not mentioned. Instead, the Meta tag appeared to be merely envisioned as a device allowing reading machines to determine the correct way to use a file.

Consequently, there were a number of different META tags that describe everything from site content to the site author to a page rating. Different browsers recognize different META tags.

Generally there are three kinds of Meta tags: Descriptive, Keywords and Robot Meta tags. Descriptive Meta tags describe the content of the html document. Keywords offer search engines 'relevant' words to retrieve a page quickly. Robot tags in a Meta tag indicate to search engines that a specific website or certain website pages is/are not to be indexed by the search engine and should therefore not be retrievable. Most Meta tags combine only the first two kinds of Meta tags. These are detectable by search engine spiders and are used by the latter to index the sites which they detect.

Although the most important Meta tags are title, key word and description, there are other useful Meta tags like:

Refresh: Use this attribute to refresh the page and/or to redirect the user after a certain period of time.

Copyright: The copyright date of the page.

Author: The author's name and any other information (email address, state, etc).

Expires: Tells search engine when the page will be out of date. For instance, if you have a page describing last date for article set for March 2010, you might set the page expiration date to April 2010.

Rating: Use this META tag to rate your page much like movies and TV shows are rated. As more parents use filtering software, many may block access to "unrated" sites. In the future, a rating META tag may be necessary to increase your site's visibility.”

Web page designers use this hidden HTML code to designate keywords which are communicated to search engine software. This is an important associational tool for the Web page designer since search engines are often unable to properly index a particular Web page based on the text of the page. In its cooperation with a search engine, a meta-tag keyword may be thought of as a "pre-hyperlink" since a hyperlink is often created by a search engine in a search results phase when a user performs a search using that keyword.

Meta Tags And Trademark Laws

With the growth of internet, it has raised many legal issues. One big change which can be noticed with growth of internet is more and more curiosity about intellectual property. Internet and Intellectual property laws are inter-related. Cyber law and intellectual property Right is relatively very new concept in India.

One of the areas of Intellectual Property Right peculiar to the Internet is the use of Trademarks within the body of the Meta tag section of the source code of a writer web site. The manner in which the keywords are created and used in the Meta tag section can often make the difference between being found at all on the Net or where within the search results, the site pops up. The use of trademarks in the keywords is a legal issue for the site owner, site's designer and the trademark owner.

Of course, the owner of a trademark is free to use that trademark in Meta tags and in the content of his or her own Web site. Problems arise, however, when a person uses another party's trademarks on his or her site without authorization.

Talking of legal liabilities with reference to meta-tagging the copyright infringement is quite difficult because for copyright one must use any kind of image or graphic and that is not the case here because Meta tags are mere words. Nevertheless if someone still use as Meta tags, slogans or phrases that belong to someone else, therefore it could be an infringement case but under other legislations.

In the case on trademark infringement, under the American legislation Under the Lanham Act, a person can be liable for trademark infringement if he or she, without the permission of the trademark owner, “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ….” U.S.C. §1114(1)(a).

In the case of Australian legislation, under the Trade Marks Act 1995 (Cth) it is possible to talk about trademark infringement when the consumer are confused in relation with owner of the mark, or by the use of someone else's trademark in respect of the same goods or services as the original mark. In addition, under the section 120(3) it is also possible to infringe a trade mark in Australia where the mark is ‘well known' and someone else uses it as indicating a connection between the unlawful user's goods or services and the trade mark owner.

Indian Dalna Hai

Various United States Courts of Appeals has devised its own variation of a list of factors to be considered in determining whether there is the requisite likelihood of confusion for trademark infringement.

Confusion may arise before using a code as well as after using it, can be referred as a before sell and after sell situation, regarding pre-sale confusion, if we go by the judgment of US court in Blockbuster Entertainment v. Laylco in other sense explaining the importance of confusion the court stated "The critical issue is the degree to which the seller might attract potential customers based on the similarity to the name." In other case of Jeff Foxworthy v. Custom Tees, Inc. court specifically addresses the distinction in types of confusion, stating "the fact that [the customer] was not 'actually' confused at the point of sale does not change the likelihood that others would associate defendant's [goods] with plaintiff, whether at the point of sale or in the public after sale." These cases suggest that courts may look to post-sale confusion in considering a likelihood of confusion as well as point-of-sale confusion.

In comparing two marks to evaluate likelihood of confusion, commonly examined factors include strength of the conflicting marks, degree of similarity between the marks, proximity of the goods or services, the junior user's good faith in choosing its marks and the sophistication of the purchasers.

Cyber activities are covered under Information Technology Act, 2000 in India but Information Technology Act, 2000 itself does not cover every issued related to cyber law. The protection of Intellectual Property on Internet still remains a grey area in India with information technology Act, 2000.

Meta Tagging And Trademark Infringement

The key function of a trademark is to indicate the source or origin of goods and services. Trademark is protected under the Trademarks Act, 1999 in India, where a registered trademark is infringed (Section 29 of the Act) by a person who not being a registered proprietor of the mark uses in the course of trade a mark similar or identical to such registered trademark, when in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark, or if the TM is identical with or similar to the registered trade mark [Sec 29(4) (a)].

Under the Lanham Act (Federal Trademark Act, 1946), a person can be liable for trademark infringement if he or she, without the permission of the trademark owner, “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ….” 15 U.S.C. §1114(1)(a).

Infringing Meta Tags

High Court of Delhi, in the case of Yahoo v. Akash Arora, said that: “Even if an individual is a sophisticated user of the Internet, he may be an unsophisticated consumer of information and such a person may find his/her way to the defendant Internet site which provides almost similar type of information as that of the plaintiff and thereby confusion could be created in the mind of the said person who intends to visit the Internet site of the plaintiff, but, in fact reaches the Internet site of the defendant.”

InBrookfield Communications vs. West Coast Entertainment, the site run by the defendant West Coast used the term “moviebuff” in its keywords, which term was actually a registered trademark of the plaintiff, Brookfield. Even though the defendant owned the domain moviebuff.com, the court held that the use of the registered mark in the keywords amounted to a diversion of traffic from the site of the plaintiff and as such, was an unauthorized use of plaintiff's registered mark and thus an infringement.

In Oppedahl & Larson v. Advanced Concepts, a law firm dealing with domain name disputes was confronted with the use of the meta tags 'oppedahl' and 'larson' as meta tags in the defendant's web site, without any clear reason but with the impression that the defendant hoped to capture traffic that would gain them domain name registration fees or web site hosting clients. The court banned the defendant from using the names without authorization in application of the Lanham Act (US Trademark Act), using unfair competition as a basis for its permanent injunction.

In Insituform Technologies Inc. v. National Environtech Group, L.L.C. the court enjoined National Environtech for using the claimant's name and trademarked products called Insituform and Insitupipe in its Meta tags. Clearer reliance on trademark law was provided in a number of Playboy (tm) related cases. In Playboy Enterprises Inc. v. Calvin Designer Label the defendants spammed their web pages with the trademarks Playboy and Playmate hundreds of times in their web sites "playboyxxx.com" and "playmatelive.com". The court found for a trademark law violation under the classical trademark principles of the Lanham Act, even if the violation was invisible to the public, on the basis of the dilution of trademark theory. In Playboy Enterprises Inc. v. AsiaFocus International and Internet Promotional the 'clickthrough' sites, guiding people towards porn sites, were found liable for a three million USD award, the court stating that the trademarks violated 'have acquired such goodwill and secondary meaning through national and international advertising and promotion that the public has come to associate the "Playmate" and "Playboy" trademarks exclusively with [Playboy Enterprises]".

In the case Eli Lilly & Company v. Natural Answers, Inc., 233 F.3d 456 (7th Cir. 2000), Natural Answers' Web site contains a column labeled "Think Herbs - not drugs!” under which it features a table labeled "Herbs v. Drugs" which contrasts Natural Answers' products with a generic "Drug Alternative." The web site contained a source code which included the term "Prozac" as a Meta tag, and described HERBROZAC as "a powerful, and effective all-natural and herbal formula alternative to the prescription drug Prozac." Internet search engines read source codes, which are not immediately visible to an Internet user, in response to search queries. Natural Answers' use of "Prozac" as a Meta tag was an attempt to guide Internet users searching for information on PROZACþ to Natural Answers' Web site. This effort apparently was unsuccessful, however, because searchers entering the keyword "Prozac" were swamped with Web sites containing a greater number of references to PROZACþ. Natural Answers removed the term "Prozac" from its source codes in response to this lawsuit.”

Permissible Uses Of Trademarks In Meta Tags

“Not every meta tag use of another company's trademark is illegal.” When the trademark is used only to describe the goods or services of a company, or their geographic origin or defendant has used plaintiffs trademarks in good faith to index the content of her website, this is permitted under trademark law as a "fair use", but, there is unfortunately no clear test for proving fair use.

For example, if a site called www.ghoomar.com distributes traditional literature and music from the Rajasthan, it may use the word "Rajasthan" in its Meta tags. This use would not infringe the Rajasthan.com trademark because the term "Rajasthan" is being accurately used to describe the goods offered at Ghoomar.com.

In Playboy Enterprises, Inc. v. Welles, 7 F. Supp. 2d 1098 (Cal. S.D. 1998), a woman who was a former Playmate of the Year inPlayboymagazine was permitted to use those marks in the meta tags of her Web site to index and describe the content of her Web site, thus This use of Playboy's trademarks was permitted because Ms. Welles was using the terms to describe herself and to properly index the pages.

Conclusion

But is the TM is not registered, tort of passing off is committed (under sec 27), when offending trader (advertiser) applies an established trademark in such a manner so as to cause confusion or deception in the mind of the consumers regarding the source or origin of the goods. There has to be wrongful misrepresentation of product to ultimate customers and they (customer) must to maintain the case of passing off plaintiff must proof that:-

  • There is goodwill associated with the mark
  • There is misrepresentation of the mark and
  • There is confusion or likelihood of confusion or deception.

Put META Tags To Work On Your Site by Larisa Thomason, Senior Web Analyst, NetMechanic, Inc.

3 J.T. McCarthy, Trademarks and Unfair Competition § 24.06[4] (3d ed. 1995 rev.).

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