In today's digital world, internet search engines are widely used to find and locate data based on key search terms. Search engines will usually provide a list of websites or images it considers relevant or connected to your search terms, and some sites are ranked higher than others in terms of their relevance to the key search terms. The websites which appear first are also likely to be seen by more internet users. As a result, competition amongst businesses is rife in relation to obtaining top placement of their website on a search results page.

Internet search engines use different algorithms and methods to determine the relevancy of websites with respect to particular search keywords, and the ranking of websites on the internet search engine results page. Importantly, search engines can look at ‘meta tags' within a website's source code to find relevant words to match with search results. ‘Meta tags' are pieces of text in a website's code, and these can assist search engines in indexing a website in a search result. These ‘meta tags' are not typically visible to the average consumer, unless they are displayed by the search engine or accessed by viewing the source code of a website. They have however become an important marketing tool for businesses in ensuring the popularity of their online presence.

As a result, there have been a growing number of cases in Australia and overseas, involving competitors using competing brand names within their ‘meta tags' in order to obtain top ranking on search results when consumers are using search engines to search for a competing brand. One of the contentious questions over the years and around the world in relation to this practice, has been whether the use of a competing brand name in ‘meta data' by a business other than the owner of that registered trade mark, constitutes an infringement of such owners registered trade mark rights.

In Australia, registered trade mark owners should be aware that the Trade Marks Act 1995 (Cth) provides the owner of a registered trade mark with exclusive rights over that mark, such that if a third party uses that mark, or a similar mark, in relation to the same and/or similar goods and/or services, (subject to any defences which may be available), this may amount to infringement of those exclusive rights. The recent Australian case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56 (‘Accor')1, which was a decision of the Full Federal Court, found that the use of a ‘meta tag' in the circumstances of that case did constitute trade mark infringement. The case went even further to suggest that despite who put the ‘meta tag' into the source data, if the owner of the website was in charge of operating and controlling the site, the owner could still be responsible for such infringement.

This update therefore seeks to act as a timely reminder for website owners to ensure that they are not using third party trade marks in their ‘meta tags', without consent, as well as to remind trade mark owners to check their competitors ‘meta tags' to ensure that their trade mark rights are not being infringed.



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