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Description Meta Tags, Trademarks, and Fair Use

The Digital Revolution has made the presence of a website a sine qua non for a company’s relevancy and success.  Website owners and webmasters working in competitive industries find themselves jockeying for position with respect to their websites’ rankings within search engine results pages.  One technique they may use to achieve higher rankings concerns the strategic use of description meta tags.

A description meta tag, also known as a meta description or meta description tag, provides a short description summarizing the contents of a web page for the benefit of users and search engines.  It is usually between a sentence and a small paragraph, appearing below a blue clickable link in a search engine results page.  It serves as a website owner’s or webmaster’s opportunity to display content to searchers (with the aim of generating click-throughs from search engines) and searchers’ opportunity to determine whether the displayed content is germane to their inquiry.

The strategic use of description meta tags is commonplace and, generally speaking, harmless; however, meta tag issues occur when a company uses another company’s trademark in a meta tag and thereby attempts to hijack the goodwill or brand recognition of the popular trademark and divert the competitor’s web traffic to its own website for commercial gain.

Such dishonest use can be enjoined as trademark infringement.

There may be situations, though, in which a company’s use of another company’s trademark in a meta tag may not be dishonest or subject to trademark infringement remedies.  Courts are permitting fair use as a defense in meta tag cases: one such example, descriptive fair use, permits use of another’s trademark to describe the user’s products or services rather than to indicate the source of the products or services (as a trademark).  For example, a cereal manufacturer may be able to describe its product as being made up of “all bran” without infringing upon Kellogg’s rights in the mark “All Bran”.  The use of “all bran” would be in a purely descriptive or informative manner and not indicative of the source of the goods.

While trademark rights may be acquired in a word or phrase, such rights do not prevent others from using the word or phrase in good faith in its descriptive sense (and not as a trademark).  One court has stated that “[t]he registering of…a trademark does not withdraw it from the language, nor reduce it to exclusive possession of the registrant which may be jealously guarding it against any and all use by others.”

If a competitor’s trademark is used within your website’s meta tags, you risk owing damages and even the competitor’s attorneys’ fees if you unsuccessfully overcome a demand letter, cease and desist letter, or lawsuit.  Check with legal counsel before drafting these short descriptions that summarize the contents of a web page.

Matthew T. Kincaid

 

 

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