Network: A game of tag played on the Net

MOST WEB surfers navigate their way around the Internet with not too much thought as to how or why they end up at the website which they are viewing. If they have used a search engine, then the chances are fairly high that they will have been drawn to their current destination by clever use of meta tags.

Meta tags are pieces of coding unseen by Web users but easily revealed by those who view the source code through their browser. Buried in the HTML, meta tags can include descriptions of the contents of individual Web pages and long lists of keywords that search engines read. For example, the meta tag for the UK site of the bookseller Amazon starts off with "book, books, shop, store, book shop, bookstore, publisher, bookshop".

These tags are a vital marketing tool for commercial websites and help to determine which site you are most likely to visit after keying your enquiry into a search engine. So it is little surprise that meta tags have already been the subject of several legal cases in the US. Focusing mainly around trademark law, these cases have been initiated by companies that are keen to protect the power and primacy of their brands on the Web.

The most recent of these cases was brought by Brookfield Communications, a business that provides entertainment news and archive information both online and in its software packages. One of these services is known as MovieBuff, and it is the use of this trademark in the meta tags of a site set up by West Coast Video, a chain of video hire shops, that was in dispute. West Coast Video had also registered the domain name "moviebuff.com".

Brookfield claimed that the use of its trademark in this way would have a negative impact upon its business and could cause confusion among people who were looking for its site. The panel of judges at a federal appeals court in San Francisco agreed with Brookfield's assertion, ordering West Coast Video to cease its use of the MovieBuff trademark and issuing what is being seen as the definitive decision on the content and use of meta tags.

This decision has been largely applauded by US lawyers, not least because it seems to have been made by a panel of judges with more than a passing understanding of the Internet and the marketing tools used in cyberspace. In his summary of the decision, Judge Diarmuid F O'Scannlain presents a clear overview of how the panel saw things, addressing the issues in layman's terms.

"Using another's trademark in one's meta tags is much like posting a sign with another's trademark in front of one's store," he says. "Suppose West Coast's competitor, let's call it Blockbuster, puts up a billboard on a highway reading `West Coast Video ... at Exit 7', where West Coast is really at Exit 8 but Blockbuster is located at Exit 7.

"Unable to locate West Coast, but seeing the Blockbuster store... they may simply rent there. Customers are not confused in the narrow sense: they are fully aware that they are purchasing from Blockbuster and have no reason to believe Blockbuster is related to, or in any way sponsored by, West Coast.

"Nevertheless, the fact that there is only initial consumer confusion does not alter the fact that Blockbuster would be misappropriating West Coast's acquired goodwill."

Interestingly, and no doubt to the annoyance of some litigious corporations, the judge stated that there is no blanket ban on the use of trademarks within meta tags, but only where it may cause confusion to the customer. This leaves the door ajar for those who wish fairly to compare their services with that of a rival and then include that rival's name in their tags.

This decision on usage was based partly upon a case initiated by Playboy against one of its former models, who had used the terms "Playboy" and "Playmate" in the meta tags for her website. Here it was ruled that she was not in breach of trademark law as she was a former Playboy model and Playmate, so these were descriptive terms which related to her career and were not intended to draw business away from Playboy itself.

Graham Smith, author of Internet Law and Regulation, feels that the legal situation in the US will be closely shadowed by the UK. "There have been no English cases so far on meta tags," he says, "but there is no reason why the trademark law shouldn't apply to use of meta tags in the same way as it does to other uses. The only thing that people might think was a question mark is the fact that the tags are hidden, but under the current trademark law the definition of use and infringement is fairly wide."