On Monday, the 11th circuit U.S. Appeals Court upheld an earlier verdict that says the use of trademarked terms in a meta-description tag can create confusion and thus be considered a trademark infringement.
The suit was filed by North American Medical Corp. (NAM) and Adagen Medical International against Axiom Worldwide Inc. and is known as North American Medial Corp. v. Axiom Worldwide, Inc.
NAM and Axiom compete against each other making and selling spinal decompression devices. The case revolves around the #2 placement Axiom achieved at Google under trademarked terms belonging to NAM, “Accu-Spina” and “IDD Therapy”. Those terms happen to be found in Axiom’s meta-description tag and are included in the descriptive-text that appeared under links in Google’s search results.
The decision rested on the court’s understanding (or misunderstanding) of how Google’s ranking algorithms operate with the plaintiff suggesting the defendant’s use of of their trademarks in their description tag was the reason the defendant’s website was pushed to the #2 position.
As pointed out by Eric Goldman who originally covered the story in his Technology and Marketing Law Blog,
“The court assumes causality here between the metatag inclusion and the search engine displays. This might be possible if Axiom put its competitor trademarks in the description metatags. Doing so isn’t automatically problematic; for example, a description metatag that has comparative statements with competitive products should be permissible. However, description metatags–just like any other marketing copy–could be written in a way designed to deceive consumers. If that’s what happened here, then I understand the court’s anger (even if I might disagree with its analysis).
But another hypothesis fits these facts. The court does not exhibit any understanding of anchor text or the fact that Google sometimes automatically assembles search result descriptions using third party content (such as DMOZ). So it’s entirely possible for these three salient facts to occur (i.e., Axiom’s site to show up for searches on the competitive trademarks with the trademarks in the site description) even if Axiom only included the trademarks in the keyword metatags (which we know Google ignores). If the latter hypothesis is true, the 11th Circuit completely misattributed responsibility to Axiom for doing things it didn’t do.”
Though the US Appeals Court might have demonstrated a misunderstanding of how Google works, it has laid down the law on the use of competitors’ trademarks in your description metatags.
SEOs should be certain that the trademarks owned by competitors do not appear in the metatags of websites they work on. If they are thought to be used in a comparative way (one brand is better than another), run the copy past a lawyer.
If you suspect your competition is unfairly using your trademarks in their source-code, let your SEO or Reputation Management specialists know. Chances are, there is remedy if the transgression can be properly documented and presented.
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