Federal Court finds use of Metatags does not infringe Trademark or Copyright

March 30th, 2015 by

In a recent decision of the Federal Court of Canada (Red Label Vacations Inc v 411 Travel Buys Limited, 2015 FC 19), it was held that use of another party’s trademark as a meta tag keyword did not infringe on that other party’s trademark, nor did it constitute copyright infringement.  The issue at hand was that 411 Travel Buys Limited included their competitor’s (Red Label Vacation Inc.) trademarks in the metatags of their website.

While the topic of metatags has been raised in other cases, this decision was the first to provide a detailed consideration of the issues.

With respect to the copyright infringement claim, Justice Manson held that there was not enough of any sufficient degree of skill and judgement in creating the metatags to grant copyright protection to metatags.

With respect to the trademark infringement claim, the descision turned on the question of whether the use of another party’s trademark as a metatag keyword constituted “use” as a trademark as defined under the Trademarks Act, which with respect to a service means ” used or displayed in the performance or advertising of those services”.  Because the trademarks were not visible to visitors of the website, the inclusion of the trademarks as metatag keywords was not considered sufficiently deceptive to constitute passing off.  Additionally, because there was no “use” of the keywords as a trademark by the defendant, there could be no finding of depreciation of the plaintiff’s goodwill.

This is not to say that in every instance you are free to use your competitor’s trademarks in your metatags.  The law on trademark infringement and metatags differs from jurisdiction to jurisdiction. In the US for example, several courts have given merit to the theory of initial interest confusion, and have in fact held that, in certain circumstances, using a competitor’s trademark in a metatags can result in trademark infringement.

The plaintiffs in the Red Label case have filed an appeal so stay tuned!

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