A long time ago, search engines used metatags as a way to find and rank websites. A "meta tag" is a list of words normally hidden in a website that a search engine would use to index the content of the website. When a user typed a search phrase in a search engine, the search engine would count the number of times that phrase occurred in the content of various websites and rank them for the user from most often listed to least often listed. As such, unscrupulous marketers and website designers would load their websites with metatags (oftentimes the metatags would have no relation to the actual content of their website) in order to achieve a higher search engine rankings. More often than not, the metatags would include a trademark of another. For example, Nike may want to load their website with metatags like "Adidas," "Reebok," or "Puma" in an effort to divert consumers looking for those brands to their website.
The use of metatags that include another's trademark to divert a consumer to one's website was often found to be trademark infringement because courts would assume (wrongly) that the potential for confusion would exist. However, the search engine would simply list out the results and an internet user would often be able to find the "correct" website that he or she was looking for based on the listed domain name. For example, if an internet user typed in the search term "Adidas" and the results listed www.nike.com, www.reebok.com, and www.adidas.com, the consumer would be able to quickly determine that the site he or she wanted was www.adidas.com, and not the others--even if the others appeared ahead of www.adidas.com in the search engine ranking. Even assuming that the consumer would be fooled into visiting the first listed website, www.nike.com, once there, the consumer surely would understand that this was not an Adidas website. Unfortunately, most courts did not think that the consumers were that smart. (Although, the court in Toyota Motor Sales, Inc. v. Tabari, 610 F.3d 1171, 1178 (9th Cir. 2010), expressed its understanding that internet consumers were not so stupid or easily confused.) The courts believing internet users to be so easily confused do not give consumers enough credit. An infringer should have done something more (e.g. copy the design of the trademark owner's website, use the trademark owner's mark in its domain name) to be held liable for trademark infringement.
If that were not bad enough, search engines no longer use the metatag technology to rank websites. The change came in part because of the gaming of the rankings through the use of "bogus" or unrelated metatags to appear high on almost any search engine result. Now, search engines use algorithms to rank websites. These algorithms change often and are a closely guarded secret. In fact, many of the search engines do not even use metatags as part of their relevancy algorithms. In the case of Google, it announced in 2009 that its search engine algorithm did not rely on metatags. More importantly, when a website is found to improperly and artificially raise a website's placement, Google will "blacklist" that website.
Because of this change in the way search engines rank websites, courts have even less reason to follow the precedent of metatag misdirection to find trademark infringement. Yet, it appears that courts fail to understand this difference. Only one court recently understood that modern search engines do not use metatags. See Std. Process, Inc. v. Banks, 554 F. Supp. 2d 866, 871 (E.D. Wis. 2008) (quoting 4 J. Thomas McCarthy on Trademarks and Unfair Competition § 25:69 (4th ed. 2003)). That court understood that “[a]s more and more webmasters ‘manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.’” Id. (quoting E. Goldman, Deregulating Relevancy in Internet Trademark Law, 54 Emory L. J. 507, 567 (2005)).
It is time for courts to get with the times and realize that metatags are not as relevant as they once were. In so doing, courts should understand the concept of how search engines rank websites (there are several articles discussing the use of algorithms by search engines) and make trademark infringement determinations based on reality rather than how things worked in the "olden days." Some courts have started to realize that the search engines work without use of metatags, but they are changing their thinking at a snail's pace.
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