The case of what's in a name

Can the words used in a Web site's Meta text constitute a violation of trademark? Charles Arthur reports

This is a story about things that ordinarily you don't see, and aren't meant to see. Which is why it took a lawyer - make that an Internet- savvy, American lawyer - to spot it.

A case filed last month by the New York-based patents company Oppedahl & Larson (O&L) in the US claims damages from a rival, for "unfair competition, federal dilution [using the trademark wrongly], and trademark infringement" over the use of the words "Oppedahl" and "Larson" on the Web.

Simple enough? Not quite: for, as the lawsuit admits, the complaint is made "despite their [sic] being no visible usage of "OPPEDAHL" and "LARSON" on the sites."

Well, what's going on? It turns out that the companies which O&L is suing turned up when, as one does in bored moments, a company employee was doing a search to see where O&L was mentioned on the Web. That turned up 11 sites, run by three companies - Prowebsite, Codeteam, and Advanced Concepts. Yet on looking at the text, there was no mention of O&L - or of those keywords.

O&L specialises in patent, copyright, trademark, trade secret and other intellectual property services, and has run its own Web site since 1995 at http://www.patents.com. Naturally, the staff were intrigued as to why those unrelated companies should turn up in a search for its services.

It is alleged that each of them had tweaked the "meta" section of their Web pages to attract business. The "meta" is text that you actually don't see when you look at a Web page, unless you specifically call down the HTML code.

But the Web-searching robots that trawl on behalf of search engines such as Yahoo and AltaVista do look at the meta section - very carefully. And smart HTML authors know that. You can push your page way up the hit list for a particular topic - even one which isn't on your page at all - by including a few relevant words in the meta text.

The Heaven's Gate suicide cult in California, which reckoned that UFOs were on the way to take them to better "spiritual containers", included the words "UFO" and "extraterrestrial" more than 100 times in the meta text of its Web page to recruit new members; the idea being that anyone searching the Web for something on that topic might stumble across the page and join up. And since the meta text doesn't show up, the naive reader doesn't realise how he or she has been steered there.

Although O&L's case against its rivals has only just landed on a judge's desk, the Net-lawyers reckon the New Yorkers are on a winner. "The rule in trademark law is that you have violated the person's trademark when you use that trademark to cause confusion in the marketplace," says Gant Redmon, counsel for Axent Technologies (which is not involved in the case).

But doesn't the First Amendment allow you to say what you like on a page or invisibly above it?

"What they are doing is intentional and wrong. I have already tagged a competitor for putting our name in its Meta file: it drew people looking for us to our competitor. I was thrilled to shut down their deceptive activity. It has nothing to do with freedom of expression.

"It has a lot to do with being slimy"

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