USING TRADEMARKS IN METATAGS

As any savvy web designer knows, metatags are one of the best tools to drive traffic to a website.  As discussed below, in a recent collision between aggressive use of metatags and the trademark laws, the trademark laws came out on top.

Two companies, Promatek and Equitrac, are direct competitors in selling cost-recovery and cost-control equipment and services.  Promatek holds the registered trademark for a product called Copitrak.  Equitrac used the word Copitrack (note the different spelling) in descriptive and keyword metatags on its web site.  When Promatek discovered these metatags, it sued Equitrac in the federal court located in Chicago, Illinois.  Although Equitrac had removed the Copitrack metatags from its website before Promatek filed suit, and despite Equitrac's misspelling of Promatek's trademark, the trial court nevertheless ordered Equitrac to post a disclaimer on its website that included links to Promatek's sites.  Equitrac appealed the order to the Seventh Circuit appellate court, claiming that the links would unfairly encourage customers to leave its site for the Promatek site.

Equitrac lost the appeal.  The Seventh Circuit appellate court (which is binding on persons in Illinois, Wisconsin, and Indiana) followed the logic of a prior decision by another branch of the federal appeals court, the Ninth Circuit (which is binding on persons in several Western states, including California and Washington).  Like the Ninth Circuit, the Seventh Circuit held that placing a competitor's trademark in a metatag without permission will almost always constitute a misappropriation of the competitor's right to exclusive use of their trademark.

Possibly,  Federal courts not located in the Seventh Circuit or the Ninth Circuits may disagree with these appellate courts and rule that unauthorized uses of a competitor's trademark in a metatag is not unlawful.  Until that occurs or unless the Supreme Court someday overturns the Seventh Circuit and Ninth Circuit decisions, you should think twice before using another's trademark in your website's metatags without permission.  Otherwise, like Equitrac, you too might be compelled to post on your website a disclaimer and a link to your competitor's site.