Using Third Party Trademarks as Meta-Tags on Blogs

Hello!

I hope all is well! Like most bloggers, I use meta-tags based on the subject of my blog or posts, to make it easier for search engines to find my blog when an internet users enters the search term. However, what happens when you use a trademark as a search term.  Is it trademark infringement or a search engine linking function?  This issue was discussed at PLI's Intellectual Property Law Institute.  There are two critical cases that have recently addressed this issue. However, each ruling is different.  Here is a brief synopsis of the law as it stands today:

1. The use of trademarks in meta-tags is "use in commerce" and therefore trademark infringement. The 11th Circuit came to this inclusion this year in North American Medical Corp. v. Axiom. The court stated that the use of a trademark as a meta-tag was use in commerce. Essentially, the court concluded that the use of the meta-tag, which resulted in the trademark in question being displayed on the search engine, was an advertisement for the sale of goods. Thus it was used in commerce.

2. However, the 2nd circuit decided in 1-800 Contacts, Inc. v. WhenU.Com, Inc. that use of trademarks in meta-tags was not a "use in commerce" because the search engine merely provided the link to the trademark.  The court emphasized that linking a trademark through a search engine was not a use in commerce because the trademark in question was being displayed by a machine and the defendant was not causing the trademark to be physically placed on goods or services, or was physically causing the trademark to be displayed or reproduced.  

What does all of this mean for those of us who use meta-tags? Although the 2nd Circuit and 11th Circuit give different opinions on whether the use of trademarks in meta-tags is trademark infringement, it is better to be safe than sorry.  When using meta-tags be wary of using trademarks.  Make sure that when you purchase key words meta-tags that there are not any trademark in the list.  The last thing you want is to be sued by a huge corporate giant for trademark infringement.