Meta tags are snippets of text that act as descriptors of content. They appear in the HTML code of websites. Meta tags operate to assist search engines to index web pages. Generally, users cannot view all of the types of meta tags unless a search engine displays them or a user views the source code of the website. Meta tags may include trade marks.  For example, competitors may use your trade mark in their meta tags to lure or bait users to their website when they search for yours. What can you do if a competitor is using your trade mark as a meta tag? If you cannot see the meta tags, how do you even know whether someone else is infringing your trade mark? This article will address the question of whether meta tags can breach your trade mark rights.

Importance of Meta Tags

Meta tags provide a business with a competitive edge. HTML meta tags are found in the page data that lies between the open and closing head tags in the HTML code. The tags communicate with browsers or other web services information about the page. There are many different types of meta tags, including:

  • meta keywords: similar to blog tags, keywords help search engines determine what topics the content on your website covers; and
  • meta description: usually no longer than 155 characters, its function is to:
    • tell the search engine what your site does and is about;
    • assist with click-through rates; it will give users a well-written description of your site and help them click through to your page; and
    • increase site rankings.

For example, HTML meta tags may look like this:

<head>
<meta charset=”UTF-8″>
<meta name=”description” content=”Explore the world, one adventure at a time with Wanderlust Travel Services.”>
<meta name=”keywords” content=”travel, adventure, explore, travel service”>
<meta name=”author” content=”Wanderlust Travel Services”>
<meta name=”viewport” content=”width=device-width, initial-scale=1.0″>
</head>

Trade Mark Infringement

Registering a trade mark provides the owner of the mark with exclusive usage rights. When another party uses a term which is identical or similar to the registered trade mark for similar goods or services, they typically infringe the owner’s rights.

Proving trade mark infringement is not as straightforward as it may sound. Can you still show trade mark infringement if the trade mark is used in seemingly invisible meta tags? Recent Australian case law answers this question.

The Accor Case

Prior to the case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (the Accor case), a trade mark had to be publicly visible to constitute infringement. The Accor case confirmed that, despite being not immediately visible, a meta tag can still infringe a trade mark.

Accor owns the trade mark ‘Harbour Lights’. As Liv used the mark offering accommodation services in the same complex and in competition with Accor, Accor claimed Liv infringed their trade mark rights. Liv used the mark in their domain name, source data through meta tags and advertising material. The source data for Liv’s website included the following phrase:

“content: = Harbour Lights Apartments in Cairns offer luxury private waterfront apartment accommodation for holiday letting and short term rental”

The court held that using the phrase ‘Harbour Lights Apartments’ was enough to constitute trade mark infringement. Liv argued that an IT data consultant created the source data and it was out of their control. However, the court held that Liv was in charge of operating and controlling the website and, therefore, still responsible. The judge also came to a conclusion that the source data was for the benefit of Liv. Including the phrase in their meta tag worked in Liv’s favour to optimise their search results: when someone searched for ‘Harbour Lights Apartments’, Liv’s website would appear.

Preventing Trade Mark Infringement via Meta Tags

If you are a website owner, you should instruct your IT team or web developers to avoid using other business’ trade marks without permission. You may be infringing a trade mark, even unknowingly. Therefore, it is best practice to take precautions and prevent any potential infringement.

Preventing Others Infringing Your Trade Mark via Meta Tags

It is crucial to monitor trade mark infringement and take action where necessary. If you suspect that another business is using your trade mark or infringing your rights, you should look at their meta tags on their website.

To view meta tags, right click on a web page and click ‘View Page Source’. You can then view the meta tags including the description and keywords and determine whether that business is using your trade mark. If the business is using your trade mark in their meta tags, you may have a claim for trade mark infringement and should request they remove the infringing material.

Key Takeaways

Registering a trade mark for your business name is an integral part of any brand protection strategy. Competitors can infringe your trade mark rights by using your trade mark without your permission in their meta tags. They may use your trade mark to bait users searching for your website, goods or services. Therefore, it is crucial to monitor any trade mark infringement and enforce your trade mark rights where necessary.

If you have any questions or need assistance in enforcing your trade mark rights, get in touch with  LegalVision’s trade mark lawyers on 1300 544 755 or fill out the form on this page.

Sophie Glover
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