Meta-Tags of Trademarks can Violate Lanham Act When Used By Competitors

The 11th Circuit Court of Appeals has ruled that a company who uses meta-tags of their competitor's trademarks in their web site violates the Lanham Act.  The case is North American Medical Corp. v. Axiom Worldwide, Inc., ___F.3d___, 2008 WL 918411 (CA 11, April 7, 2008).  The case involves multiple issues, including false claims Axiom allegedly made about North American Medical products.  The use of trademarks, however, is the more interesting issue.  The District Court found that Axiom's use of North American Medical trademarks as meta-tags violated 15 USC §1114(1)(a) by using them "in commerce" and causing a likelihood of confusion.

Axiom relied on the 2nd Circuit's opinion in 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400 (CA2,2005).  In that case the the defendant used the unprotected web address of the plaintiff to generate pop-up windows for itself whenever users picked plaintiff's link in search results.  Meta-tags were involved, but the Court said these were never seen by consumers.  The 11th Circuit distinguished 1-800 Contacts by noting how the meta-tags were used. 

Axiom used North American Medical trademarks as meta-tags to generate a high rank in Google search results whenever someone search for North American Medical products.  In fact, Axiom ranked second in a search.  Moreover, the meta-tag information was displayed to consumers in the Google summary of the site as displayed in the search list.

The District Court had issued a preliminary injunction against the use of meta-tags in Axiom pages.  The Court of Appeals sent the case back to see if that result was appropriate in light of the Supreme Court decision in eBay Inc v. MercExchange, L.L.C., 547 U.S. 388 (2006).