What if a competitor copied the metatags on your website and you
watched web traffic bleed from your own site while the
competitor's site enjoyed a bump in hits? Are metatags subject
to copyright or trademark protection? The recent Federal Court
decision in Red
Label Vacations Inc. (redtag.ca) v. 411 Travel Buys Limited
(411travelbuys.ca), 2015 FC 19 (CanLII), dealt with just such a
dispute when Red Label sued its competitor 411 Travel for copying
the title tags, meta descriptions and meta keywords on 48 pages of
the 411 Travel website.
The court reviewed the facts and past metatag decisions and
decided that, on balance, the metatags that were copied did not
qualify for copyright protection. "In this case there is
little evidence of any sufficient degree of skill and judgement in
creating these metatags...or for the originality required in
compiling data or other compilations... While in some cases
there may be sufficient originality in metatags to attract
copyright protection when viewed as a whole, the substance of
the metatags asserted by the Plaintiff in this case does not meet
the threshold required to acquire copyright protection in
Canada." (Emphasis added) There was copying, but without
copyright, there can be no infringement.
As for the trademark claims, the court reviewed the role of the
"searcher" (i.e. the potential customer who enters
certain search terms into a Google search) in ultimately deciding
whether or not trademark infringement had occurred. "Even if a
searcher is looking for the website connected with a particular
trade name or trademark, once that person reaches the website,
there must be confusion as to the source of the entity or person
providing the services or goods. If there is no likelihood of
confusion with respect to the source of the goods or services on
the website, there is no support for finding this prong of the test
for passing off. Accordingly, use of a competitor's
trademark or trade name in metatags does not, by itself, constitute
a basis for a likelihood of confusion, because the consumer is
still free to choose and purchase the goods or services from the
website he or she initially searched for." In this case,
there was no use of any of the Plaintiff's trademarks on the
visible portion of the 411 Travel website. Thus, the court
dismisses the trademark infringement claims.
Interestingly, the role of the searcher was also reviewed in a
case between Vancouver Community College and Vancouver Career
College. Vancouver Community College sued for trademark
infringement, on the basis of the rival college using
"VCC" as part of a search-engine optimization and keyword
advertising strategy. While this recent decision (Vancouver Community
College v. Vancouver Career College (Burnaby) Inc., 2015 BCSC
1470 (CanLII)) didn't deal directly with metatags, it dealt
with the use of trademarks in Google AdWords, and the court noted:
"The authorities on passing off provide that it is the
'first impression' of the searcher at which the potential
for confusion arises which may lead to liability. In my opinion,
the 'first impression' cannot arise on a Google AdWords
search at an earlier time than when the searcher reaches a
In other words, it is the point at which a searcher reaches the
website when this "first impression" is gauged. Where the
website is clearly identified without the use of any of the
competitor's trademarks, then there will be no confusion.
This helps clarify the laws around the use of metatags and
Google AdWords; it also leaves open the possibility that metatags,
in other circumstances, could qualify for copyright protection.
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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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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