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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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