Marketing tech law blogger extraordinaire Eric Goldman has a thorough post on an 11th Circuit Court decision on the use of trademarks in metatags, as they affect search results. The case involved two medical device firms. One, Axiom, employed trademarked terms of its competitor, North American Medical Corp. in its metatags. The court ruled this is trademark infringement.
According to Goldman, the decision “distinguishes (and denigrates)” the 2nd Circuit’s 1-800 Contacts/WhenU ruling because it involves metatags rather than URLs and since Axiom apparently caused its competitors’ TMs to show up in its search result copy linking to its site.
The court also said use of another firm’s trademarks in metatags causes consumer confusion. It argued people would be misled to think Axiom’s products came from the same source as those of the actual owner of the trademarked brands in question, or that there was some relation between the two companies.
Goldman calls the decision “bizarre and frustrating,” but notes two lessons to be learned from it. First, he recommends having metatag data reviewed by the lawyers “just like any other ad copy.”
He also writes, “if you are going to use keyword metatags, you must ensure that competitive trademarks do not appear in your keyword metatags, period. It’s just not worth it. They don’t buy you much juice with the search engines anyway, and it will leave you exposed to irrational judicial freakouts about keyword metatags if ever tested in court.”
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