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Trademark Metatag Misuse and the Infringement Doctrine

Internet users are often confused in their internet searches resulting from trademark misuse in metatags and keyword banner advertisements, which may constitute pro se trademark infringement.

Manipulation of Search Engine Results by Trademark Metatag Misuse

Author:
Garnet Kelly-Cedro, was born in 1983 in Blasdell, New York. After high school, she attended Daemen College in Amherst, New York and received a Bachelor’s Degree in Liberal Arts consisting of a Major in Political Science and a Minor in Criminal Justice. In further pursuit of higher education, she attended George Washington University in Washington, D.C. and received a Master’s Degree in Professional Studies specifically Paralegal Studies with high honors.


Abstract:
Essential to survival of businesses today is protection of trademarks on Internet websites. Due to the diversity and worldwide access offered by the Internet, initial interest confusion of potential consumers through invisible manipulation of search engine results constitutes pro se trademark infringement. Use of another’s trademark in metatags and/or keyword banner advertisements causes a change in the order of search engine results thereby diverting potential consumers to a competitor’s website instead of the initial trademark owner’s website. Momentary initial interest confusion divert potential consumers by invisible and behind-the-scene nature of a competitor’s trademark when embedded in the HTML code describing the contents of an Internet website. As a result, competitor’s wrongfully profit from the actual trademark owner’s goodwill and diversion of potential Internet consumers. The possibility that a potential consumer can be diverted to a competitor’s websites is sufficient to establish initial interest confusion. As a result, potential consumers are unknowingly diverted to a competitor’s website due to the momentary initial interest confusion resulting from invisible, behind-the-scenes trademark misuse, thereby constituting prima facie evidence of trademark infringement.


MANIPULATION OF SEARCH ENGINE RESULTS BY TRADEMARK METATAG MISUSE CAUSES INITIAL INTEREST CONFUSTION OF POTENTIAL CUSTOMERS

Introduction

Essential to survival of any business is establishment and protection of trademarks and an Internet website. Competitors are able to manipulate search engine results so that when Internet users and potential customers enter certain keywords or trademarks into search engines the results divert potential customers to a competitor’s website away from the trademark owner’s website. As a result, trademark metatag misuse and keyword banner advertisements lead to initial interest confusion of Internet users by manipulation of search engine results and misrepresentation as to the source, affiliation and/or sponsorship of goods or services thereby constituting pro se trademark infringement.

Trademark metatags are invisible to potential customers when using various Internet search engines for a specific product or service because they are embedded in the HTML code of the website or in keyword banner advertisements. Search engine results are manipulated when a trademark as a keyword is inserted multiple times in a website’s source code, thereby placing the website higher up on the search results list. Disputes arise when a competitor’s website is listed higher on the search results list thereby causing diversion of potential customers searching for the actual trademark owner’s website for purchase of products or services. Therefore, trademark metatag misuse should be considered pro se trademark infringement because potential customers experience initial interest confusion as well as diversion to a competitor’s website causing inherent harm to the trademark owner contrary to trademark protection laws.

Congress enacted laws for purposes of trademark protection to prevent confusion of consumers as to the actual source of a product and to protect the misappropriation of the goodwill established by the trademark owner. Section 32(1) of the Lanham Act provides, in part, that “any person who shall, without the consent of the registrant – (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the same, 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; … shall be liable in a civil action.” The purpose of such legislation is to protect trademarks from unauthorized uses such as trademark metatag misuse and keyword banner advertisements which cause consumer confusion. Although the actual “use” is invisible to Internet users, is likely to cause initial interest confusion and diversion to a competitor’s website. Initial interest confusion is caused by the “use” even though it is invisible to consumers because it causes diversion to a competitor’s website, and therefore, constitutes pro se trademark infringement.



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