The success of a business that operates online is, in large part, driven by how effective the business is in utilizing search engines, which generate most internet traffic. Owners of these online businesses who are worried about their trade names and registered trademarks being used by competitors attempting to manipulate search engine results to siphon off sales may find little solace in a recent court ruling. Earlier this year, the Federal Court in Red Label Vacations Inc. v. 411 Travel Buys Ltd., 2015 FC 19 did not find copyright protection in metatags, nor was a competitor's use of a business's registered trademarks in metatags found to constitute passing-off or trademark infringement.
What is a metatag?
Metatags are words or phrases embedded within a website's source code, which are not visible on a webpage level, but can influence the results that populate in search engines such as Google. There are three different types of metatags: Title tags, description tags, and keyword tags. Given the significance of search engine results in driving pageviews, metatags can be highly important to an online business.
What happened in Red Label?
For a period of several months in 2009, metatags of Red Label Vacations' popular travel website RedTag.ca were copied verbatim by new competitor 411TravelBuys.ca. The metatags copied included registered trademarks of Red Label. The period where 411TravelBuys' use of RedTag's metatags would have affected search results coincided with a decline in RedTag's sales. Red Label claimed for copyright and trademark infringement.
The Court Gives Little Protection to Metatags
Copyright
The Court found no evidence that sufficient "skill and judgment" was exercised for the copied metatags to be considered "original" and attract copyright protection as per the standard in the landmark case of CCH v. Law Society of Upper Canada, 2004 SCC 13. The Court left open the idea that metatags may be able to attract this protection in the future, but Red Label's metatags were fairly generic to the travel industry.
Passing off and Trademarks
The crux of the ruling in Red Label is that using a competitor's trademarks in your website's metatags to try to attract consumers looking for your competitor's site to your site would not be considered passing off or trademark infringement.
The Court expressly rejected the idea that "initial interest confusion" was enough to deceive the public and cause harm to the plaintiff. The Court's reasoning was that the use of metatags in manipulating search results merely offer a search engine user a choice of independent and distinct links to choose from. Even if a searcher is looking for one website associated with a trademark, once they reach a different website, they would not be confused as to the source of that second website or any affiliation with the first site. For example, if you search for Pepsi, and through the use of Pepsi's metatags by Coke you end up reaching the Coke website, once you examine the site, you would no longer be confused as to who is really behind the good or service.
The ruling seems to suggest that so long as there is not confusion on a visual website level, no passing off or infringement will have occurred. This decision has been seen as a bit of a departure from the Canadian common law on initial interest confusion in online scenarios, such as domain names. This also is part of a pattern in Canadian law of showing hesitancy towards applying intellectual property protection to metatags.
The case will be heard by the Federal Court of Appeal in the near future, so for businesses that operate online this will definitely be a decision to keep an eye on.
It is worth noting that from the time when the facts in Red Label arose in 2009, many search engines, including Google, have amended their search algorithms to minimize the value of keyword metatags. For business owners worried about their trademarks being used by competitors to siphon web traffic and sales away, this may lessen the impact of this decision.
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