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Courts and the META Tag 80

Posted by Hemos from the no-more-trademarks dept.
tomreagan writes "The San Francisco Ninth Court of Appeals has ruled that it is illegal to use someone else's trademarks in your META tags. A company called Brookfield Entertainment sued West Coast Video for putting "moviebuff" in their META tags, a term which it Brookfield has copyrighted. The court ruled that WestCoast video had to remove the word from its pages META tags. The really scary thing is that West Coast Video and Brookfield are in totally different businesses - it would seem that this means anyone can be sued for any infringement. Webmasters everywhere should be quaking in their boots on this one. The original story can be found here on the NYTimes website and the judgment can be found here on a Villanova website.
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Courts and the META Tag More

Courts and the META Tag

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  • ...a term which it Brookfield has copyrighted

    No, it's a trademark, not a copyright. Considering how much flaming on slashdot (both from the people who write the stories and those who comment on them) is directed at mainstream press reporters when they misuse technical terms relating to computers, I'm amazed at how little care goes into getting legal terms right when slashdot reports on legal matters.

  • I too finally slogged my way through this ruling. Quite an interesting read. I would like to add to what you wrote by pointing out several additional key points that were made:

    1) Registering a domain name does not equate to registering a trademark.

    2) Meta tags are analogous to billboards. Misinformation (for instance, directions) on a billboard used to steer ppl away from your competitor is a no no. Hence, the use of meta tags for the same purpose is also a no no.

    3) The reasonable possibility that you might be competitors in the future is important.

    4) The use of a trademark as a Meta tag is okay if done for legitimate purposes. Wells can use the meta tag Playmate because she was a Playboy Playmate.

    5) The fact that the legitimate site is only a few clicks away does not matter.
  • I'm afraid you got this wrong: what the decision says is that if you are a competitng movie company with a film a lot like bravehart, you can't put braveheart in your meta tags (but can put "brave heart" in them, and can compare your film to Braveheart in the text of your web page). It doesn't say anything about a non-commercial fan site. There are TM issues there too, but they are not the ones discussed in this opinion.

    Note that the court held that the two firms WERE in the same business (both had similar database services). Many posters on this topic have missed this key point because it is buried in para [17] of the opinion. I found this very persuasive.

    Bottom line: you can't put a competitor's trademark in your metatag in any way that might falsely suggest the page belongs to the competitor, just as you can't create a fake web page with the competitor's trademark in an attempt to cause competitive harm.

    -Michael Froomkin.
    (Worse than a lawyer: a law professor.)

  • Hm. (Score:1)

    by Anonymous Coward
    I actually found this ruling rather shockingly clueful, and am a bit suprised by all the negative reactions.

    Some points:

    1. This isn't going to kill search engines, and might go some way towards making them usable again when searching for companies online. I don't object to putting something in your metas if you actually have some content about it, but it's pretty annoying to end up at someone else's site when you're looking for a specific brand when that site bears no relation to or content regarding that brand.

    2. This ruling doesn't affect fan sites or taste tests or real content in any way. Allows use of competitors trademarks in meta tags if they're descriptive of content (i.e., Terry Allen can call herself a playmate 'cause she was, or Coke can put Pepsi in their metatags as long as they've got a taste test going.) It didn't seem to be in any way generally forbidding the use of trademarks in metas.

    I find it appropriate, and the analogy about the exits useful-- you aren't allowed to use metas for fraudulent purposes.

    Frumious B.
  • Heh, volunteers making a Linux screen saver. I wonder if they'd actually had anyone sign up for it?

    Obviously though, Algore's trying for our vote which is interesting. Politicians never go for the geek vote, just mainstream, generalized crap. Not that I would vote for him or anything.

  • Quit spreading FUD, y'all! (Score:3)

    by Roblimo ( 357 ) on Friday April 30, 1999 @01:20PM (#1909033) Homepage Journal
    I actually read the NY Times story AND the court decision. The judge did not prohibit use of a trademarked word in a meta tag, just FRAUDULENT or MISLEADING use.

    Example: If, on TechSightings (a tech-oriented site review site I edit), I use "slashdot" as a keyword, I'm fine, because I've reviewed slashdot (favorably) in the past, and have referenced comments here more than a few times. This is "fair use," under copyright law.

    BUT if I put up a porn site or one selling real estate or anything else irrelevant to slashdot, or created a site competitive to slashdot called "backslashdot" and THEN used "slashdot" as a key word, Rob would have every right to sue, and would probably win, because I'd be using HIS trademark to draw traffic to MY unrelated or competitive site in a fraudulent manner.

    All the court decision mentioned in the above story did was re-affirm this. Statements like, "this is going to kill search engines" are nothing but FUD, and should be ignored.

    From what I read in the decision, the judge had a fine grasp of what was going on online. Far better than, say, Al Gore. :)
    --Robin Miller
    Cheap Computing columnist
  • Posted by Morpheus2000:

    One may use a copyrighted meta tag in their site if the site is non-comercial or a parady. Intellectual property law permits the use of such items under what is known as the "Fair Use Doctrine." The Fair Use Doctrine is a priviledge to someone other than the owner of copyrighted material to use the material without the owner's consent. Whether a use is a permited fair use is a complex mix of factors, including the purpose and character of the use, especially whether or not it is commercial, the nature of the copyrighted work, the proportion that was taken, and the economic impact of the taking. 17 USCA 107. The use of a meta tag in a personal page would probably be held by the courts to be a fair use. The judicial ruling cited in this case involves a commercial site using another commercial party's meta tag. As long as your not motivated to make money off the meta tag, you should be OK.
  • My web site has info on Motorola ColdFire processors both of which are trademarks... If I have to remove all of the trademarks in my META tags then the search engines will slowly start to ignore me... Not good for anyone, especially Motorola as they like what I do ;)

    "They can take away our META tags.. but they can't take away our websites!!!"
    (A Scot paraphrasing another Scot who was played by an Australian...)

  • Overreaction.... (Score:4)

    by Masem ( 1171 ) on Friday April 30, 1999 @08:11AM (#1909037)
    Note that the original complaint came up because
    the person that had trademarked "moviebuff" wanted
    to get the "moviebuff.com" domain that the West
    Coast company had already. The trademark owner
    took this to court, and as the end result,
    the West Coast company is prohibited from using
    the word "moviebuff" as applicable to e-commerce ..
    namely, they had to give up the moviebuff.com
    domain, and they could not use the word in META tags that are used by search engines to place
    their site higher up on the lists.

    This, IMO, is a very isolated case that might have
    some precident when there is a problem with
    a gross trademark violation (read: domain name.com)
    The end result of the above case would make
    sense as to distance the violating company
    from the trademarked word.

    But in the case of general web usage, where
    a window-frame making company might use "windows"
    in their META tags, but at no other time
    violates MS's trademark, I don't think this
    case applies. If anything, if such a case should
    come up, I would think that the search engine that
    put the window-maker's site up above MS's site
    would be the one at fault.

    But, as always, IANAL.
  • No, the cost to the consumer matters. Let us say that I am a consumer looking for Amazon. I've heard good things about Amazon- and I want to order some books. I click on a link- It takes me to "Amazon Basin Booksellers." I know nothing about this store, and decide not to buy from them.
    I click back, and eventually find a link corresponding to "Amazon.com."

    Contrast that to the court's analogy of video stores and highway exits. I enter into the first store, I'm rushed for time, and decide to buy. It would take me 10 or 20 minutes in heavy traffic to find my way back to my original planned destination. There is a considerable disincentive for me to search for the "corect" video store...

  • Wrong analogy for meta tags (Score:3)

    by Jeremy Erwin ( 2054 ) on Friday April 30, 1999 @09:13AM (#1909039) Journal
    In the opinion, the ninth circuit compared the use of the meta tag to a street sign, falsely directing motorists to a competitor. The analogy is flawed.

    The problem is that for all of the silly arguments comparing the internet to a road (as in Internet Superhighway), the internet remains a computer network where the cost of traversing links is not as significant as taking the wrong exit.

    For example, if I knew that a certain book was either in Timbuktoo, or in Kyoto, but not in both cities, going to the wrong city would be extremely costly. If I used the internet, the cost of a wrong choice would be substantially smaller.

    Traversal of http links is not significantly bond by geography, and users have become inured to the fact thet search engines often do not give the right answer. I can search through a list of 50-200 links in a very short period of time. In addition, most search engines provide a short desrciption and a title. It's not as though the Altavista engine reports them as Link 1 -- Link 200. I can scan the list until I see something about "Moviebuff Software".
  • O.K., if I do a taste comparison between Slash-dot cola and Coca-Cola, how do I alert potential customers that Slash-dot is prefered by four-out-of-five hackers? Now I can't put "Coca-Cola" in the meta-tags even though it's a completely relevant use.

    This exact situation was addressed in the decision, and is outlined in the NYT article. Under fair use you would be allowed to have Coca-Cola in your meta-tag, because on your web page you are comparing Slashdot-Cola to Coca-Cola.

  • Would ALT+255 work ?
  • Would ALT+255 work ?

    If this shows up twice it's cause my POTS connection to my ISP keeps getting broken.

  • IANAL is I Am Not A Lawyer.

    It is sometimes used as "IANALBIPOOTV" : I Am Not A Lawyer, But I Play One On TV.

    Russell
  • I wonder if they added this just today?


    You may not, unless written permission has been previously granted, embed Metatags (hidden text used by web search engines to find
    websites) into your website using any of the registered or unregistered trademarks of Pez Candy, Inc. or its affiliates, in particular the
    PEZ® mark. Any such use of Metatags will be considered trademark infringement and will be prosecuted to the fullest extent of the law.
  • If anything good can come out of this, it will be that people think twice before putting irrelevant terms in the Meta Tags to get search engine hits.

    It would be nice to do an Altavista search where at least a simple majority of the pages are on topic for your search!
  • Does this mean Mozilla.org can now sue Micorosoft for putting "Mozilla" in the user agent string of I.E.? Does this mean Netscape can sue Microsoft for putting "Netscape" in their IE pages?
  • African or european swallow? :)
  • Check out www.google.com Much better IMHO.

    Erik
  • Check out gore's web site at www.algore2000.com Then view the source. Besides a really corny and patranizing message, he blatently infringes of the copyrights of ColdFusion, Java, Linux, OpenSource, and I'm sure some others. Gues "trademark" isn't a hip buzzword :)

    Erik
  • This is just crazy. So now if I want to make a website for ... oh ... lets say the movie Braveheart. I can't put the word 'Braveheart' in the meta tag, because it is trademarked ...

    Same goes for anything. There goes the functionality of any search engine that relies on Meta Tags. Now a Fan site isn't allowed to say what they are a fan of!

    Now of course they can use those trademarked terms in the body of the document ... but not in the Meta Tags to describe what the body talks about ...

    *sigh*
  • >It would be nice to do an Altavista search where at least a simple
    >majority of the pages are on topic for your search!

    Problem is that this goes too far. Sure it would be nice to see irrevelant terms removed. But this doesn't do that. It instead actually forces people to remove relevant terms!

    Since your website which happens to be about a trademarked item, now can't mention that trademarked item in it's META tags.
  • At the risk of infringing someone's copyright:

    <!------------------------------------------- ----------------

    April 6, 1999

    Thanks for checking out our source code! I plan to use this space to post special messages to
    those who are helping to improve our web site -- by making our source code the best it can be. The fact that you are peeking behind the scenes at our site means you can make an important difference to this Internet effort. I'm grateful for your help and support in this campaign. Now let's keep working to build the 21st Century of our dreams!

    Al Gore
    You're viewing the source code of algore2000.com, the official Gore 2000 Campaign Web Site. If you like to program HTML, JavaScript, Java, C, Cold Fusion, Active Server Pages, Perl, cgi, or any other language used for web publishing -- if you are casually browsing our code, and you are interested in becoming actively involved with the campaign as a volunteer -- then you've come to the right place!

    In the spirit of the open-source movement, we have established the Gore 2000 Volunteer Source Code Project. The source code project will make this one of the most open and interactive political campaigns ever.

    When we expand the site in the coming months, content from source code volunteers from around the nation will be posted according to its geographic origin. For instance, if you are from Iowa or New Hampshire or California and you want to volunteer by writing content (in the programming language or on the platform of your choice)for those parts of the site, we urge you to do so.

    Geographic origin is one criteria by which volunteer submissions will be judged. If you have an idea or concept that transcends geographic location, let us know and we will do our best to incorporate it into the site.

    All individual volunteer ideas and submissions will be considered, and successful submissions will be credited as they go on-line. This site is a living document, and we want it to get better every day. Your participation is crucial to its success.

    To get involved with the Gore 2000 Volunteer Source Code Project, e-mail us at:
    sourcecodevolunteers@algore2000.com

    Tell us who you are, and if posssible, (include the URLs for any work you have done to show us your talents, interests and abilities).

    Thanks for checking out our source code -- and we are looking forward to hearing from you!

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    A special message for Open Source Software enthusiasts: We are very interested in developing content that takes advantage of Open Source software such as Linux. For starters, we are conducting a Gore 2000 Linux Screen Saver design competition among volunteers to see who can build the best Gore 2000 Linux screen savers. If you would like to submit a Gore 2000 Linux screen saver for consideration, or if you have ideas for this project, please send an e-mail to:

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    Jay (=
  • visit the seemingly-innocent Pez [pez.com] website, click on the apparently-friendly cop dispenser, and you end up reading the frighteningly-scary legal notice about the Pez copyrights and trademarks. They mention META tag references, as well as plenty of other equally absurd material.

    Hmph, according to their site, I'm probably violating copyright laws just posting this. Screw fair-use laws, they don't give a hoot. Boycott Pez!
  • This still doesn't deny the realisation that "moviebuff" or "movie buff", or variations thereof, are commonplace words. How many times do you think Robert Ebert has been called a "movie buff"? How many "moviebuffs" cast their predictions that Shakespeare in Love would sweep the Academy Awards? How many "movie buffs" are already standing in line for star wars tickets?

    The fact that the company was able to register "moviebuff" as a protected term is just asanine.
  • yes. along with band-aid, kleenex, tampax, I know the dangers a firm runs into when their product name becomes too popular. but you're forgetting two things:

    1) your examples were names the company came up with themselves. "Thermos", "Xerox", they didn't outright exist in the first place. "Movie buff", or (insert foo here) buff, however, has been used in general discussion extensively, probably second only to "movie fan".

    2) sure, if I was selling movies, I'd be able to like to use the term "movie buff". But I sure as hell wouldn't register such a generic term, nor would I care if anyone else used it realising that is is so generic. Again, that's what I'm arguing. The fact that they were allowed to register that is simply disgusting.

    Sure, you can lose the trademark (nevermind that usually comes after some absurd number of court cases). But in this incidence, it shouldn't have been an allowed trademark in the first place.

    When some firm trademarks a symbol/phrase, etc., it is usually very specific, ie., certain specifications (color, font, context) are in place to specify a given medium or product/service. This court judgment, expands that field of use to an absurdly large scope.

  • OK. So this judge thinks that I'm going to be confused if I see a site come up in my Altavista search because it has someone else's brand name in the META tag. Hmm. Why else would I use a search engine if I didn't want to find all the sites that have some reference to the brand name. Just think of the uselessness of the WWW if, when I do a search on my favorite search engine, I type in "Compaq" and all it returns is "www.compaq.com".

    The judge likens this META tag use to putting another company's brand name or logo in a store window. Guess Nike will want to sue all those shoe stores that have the Nike swoosh in the window. Consumers might accidently think they're walking into Nike headquarters. Or perhaps Budweiser should be sueing all those taverns that have the "Bud" and "Busch" neon lights in the window. You certaintly wouldn't want any poor consumers thinking that they were actually entering the Anheiser Busch company now would you.

    And let's not forget the card catalogs in the thousands of libraries around the world. Imagine how many violations of this new legal finding are hiding in the keyword listings on all those card in the catalog.

    This ruling is only beneficial to lawyers looking for someone to sue. They can now just fire up a search engine and get a list of people they can threaten with lawsuits. Wonder if Yahoo, AltaVista, et. al., are looking for someone to appeal this.

  • Using a trademark in a meta tag should be legitimate if there is text in the visible part of the web page that refers to the trademark. For example, if the text is an article about a Microsoft product, you could use the relevant Microsoft trademarks in the meta tag.
  • The reason the 9th circuit is the most overturned is that it has the most liberals... and the supreme court happens to be fairly conservative right now.

    However, protecting "trademarks" and "copyrights" and such seems to be in vogue with judges and politicians of all types these days, so I doubt the supreme court would overturn this one.
  • umm no, read the new york times article which does a fairly healthy job of describing what the court interpreted as "fair use" of a trademark...

    if you are actually publishing real information about a product, you're within that scope. (IANAL, BTW)

    and for those of you spreading FUD about having to register for the times' site, think about what you're really admitting to -- that you are viewing the website of one of the most-heavily ciruclated papers on the planet -- not really much of your privacy sacrificed to acknowledge that, is there?

    personally, i think this ruling is a *GOOD THING*. a lot of companies are implementing underhanded marketing tactics to get listed higher on search engines when ppl are looking for their primary competitor (again, if everyone used Google, this wouldn't be a problem, but...), which makes the net less useful, which makes all of us less money/satisfied/popular/whatever.





    This is my opinion and my opinion only. Incidentally, IANAL.

  • This ruling isn't as bad as some people think. According to the NYTimes, you can still use a competitor's trademark in your META tag if you are comparing your product to theirs. So you can still use Coca-Cola in your page which compares it to Slashdot Cola (apologies to another poster).

    Apparently you can also use someone's trademark in a META tag if that is used to "fairly index" your site (according to the Times, although they said litigation was ongoing in that case). So you can still put up a fan page for whatever and include the corresponding META tag. These are both fair use.

    The only thing this ruling seems to prevent is using a trademark in your META tags to deliberately confuse someone into thinking that your site is something it's not. That seems like a good idea to me - truth in advertising and so on.

    Of course, you could always set up your web site in a country that doesn't abide by U.S. trademark and copyright law. As the Internet becomes more regulated in the U.S., people will just set up their servers overseas and sidestep the whole issue.

  • (This is not the first time the Meta tags have come up in court. Playboy seems to have gone apeshit about the terms Playboy and playmate.)
    And indeed, the court's decision says...
    In Welles, the case most on point, Playboy sought to enjoin former Playmate of the Year Terri Welles ("Welles") from using "Playmate" or "Playboy" on her web site featuring photographs of herself. See 7 F. Supp. 2d at 1100. Welles's web site advertised the fact that she was a former Playmate of the Year, but minimized the use of Playboy's marks; it also contained numerous disclaimers stating that her site was neither endorsed by nor affiliated with Playboy. The district court found that Welles was using "Playboy" and "Playmate" not as trademarks, but rather as descriptive terms fairly and accurately describing her web page, and that her use of "Playboy" and "Playmate" in her web site's metatags was a permissible, good faith attempt to index the content of her web site. It accordingly concluded that her use was permissible under the trademark laws. See [7 F. Supp. 2d] at 1103-04.
  • This is completely off-topic, but can someone please tell me what IANAL stands for?
    ----------
  • Spiders generally skip this sort of thing (img tags and js), and just focus on the content of the page. Meta tags are used to store keywords relating to the site. So spiders pay close attention to this information.
    ---

    "A society that will trade a little liberty for a little order will deserve neither and lose both."

  • AFAIK, IANAL means I Am Not A Lawyer. I've never seen it spelled out, but I BBS'ed for 10 years and got really good with acronyms :)

  • Al Gore is an alien, so he will naturally pick a screensaver depicting him and aliens. So get to work people and you're guaranteed to win!
  • If anything good can come out of this, it will be that people think twice before putting irrelevant terms in the Meta Tags to get search engine hits.

    While I agree the basic overall ruling is good. I personally have a problem with this specific case. Maby its just me but I think that "moviebuff" is way to much a real word, and the trademark should only apply to blatent misuse. And I seriously doupt West Coast Video used the term "moviebuff" in absolutly any relation to Brookfield Entertainment. I personally don't see much of a difference between the use of the space and without. and I personally seriously doupt anyone who is typing moviebuff into their search engine would want Brookfield Entertainments site specifically.
  • RTFA (read the fing article)
    it says fair use is legal.. as you can use thier trademark if you are talking about that company and or doing a parody concerning that company. Really folks can you read the article before you post. This fine art seems to have been lost.
    There is no spoon

  • from http://www.algore2000.com [algore2000.com]:
    When we expand the site in the coming months, content from source code volunteers from around the nation will be posted according to its geographic origin. For instance, if you are from Iowa or New Hampshire or California and you want to volunteer by writing content (in the programming language or on the platform of your choice) for those parts of the site, we urge you to do so.

    i am sending a disk-erasing utility written in 6502 machine code.

    -krog

  • It is referred to as the "Queen's English", so I suppose she owns it.

  • Trademarks are not copyrights, and vice versa (Score:5)

    by alkali ( 28338 ) on Friday April 30, 1999 @09:31AM (#1909075)
    Because there's some confusion about this n some of the foregoing comments, I'd point out that trademark protection of a word or phrase is not the same as copyright protection of a lengthy text.

    Trademark law, in a nutshell, goes like this: If I use "Quality" as the trade name for my dog food,

    • it doesn't mean that people can no longer use the word "quality",
    • it doesn't mean that people can't simply talk about "Quality Dog Food" in a non-advertising context, and
    • at least in the case of regular words like "quality" -- as opposed to made-up words like "Xerox" or "Slashdot" -- it doesn't mean you can't use the same exact word to sell a different product (e.g., "Quality Dry Cleaning").
    All the trademark means is that there are restrictions on the way you can use the word when you advertise for some other product: In particular, you have to make clear that the product you're advertising is made by someone other than the manufacturer who uses that trade name.

    I'd agree that these META-tag cases are harder than the typical trademark case, but not by much. If I put "Slashdot Cola tastes better than Coca-Cola" in the text of my web page advertising /.-brand beverages, there's no confusion -- it's clear to everyone that I'm selling something else. But the whole point of META tags is to work in the background (i.e., so you don't have to put "delicious carbonated presweetened cola flavored beverage" in the text of the page, but you can still pick up people looking for such things with search engines). If I look for "Coca-Cola" and find the /. Cola page without any explanation of why I got that result, I might assume that this was a new brand of Coke, or that Coke was now calling itself something different. That's trading on Coke's goodwill, and that's what the trademark laws prohibit. There may be some harder cases, but I think the general rule is sound.

    (Come to think of it, I could go for an ice-cold Slashdot Cola right now. I wonder if there are any left in the fridge. (glug glug glug) Aaaah, so refreshing.)

  • Actually, the Ninth Circuit is just too big to operate effectively (if one can say that the other circuits are effective). Judge O'Scannlain, the author of the opinion, came to my school recently (4/26) and spoke on the very subject of the overloaded federal appeals docket. In a conversation with him before his presentation, he mentioned this very case. Whenever the 9th Circuit hears an appeal, it has a panel drawn from the 28(!) justices of the Circuit. It's really a crap shoot for the litigants (and us, by weight of their decision) whether you get a good panel or a bad panel.


    It's probably more fair to say that the 9th Circuit gets overruled by the US Supreme Court more because it hears a majority of all appellate cases in the federal system. It's a huge circuit, California alone churns out a huge wad of litigation.


    Trademarks isn't a real hairy part of IP law. If you're interested in getting the basics of it, and other aspects of IP (copyrights and patents), pick up West's Intellectual Property "In a Nutshell" book. It should be available at any law school's bookstore. Also, the operative federal law of Trademarks is the Lanham Act (15 USC 1051).

  • Please, before you call something asinine, understand what is being discussed. A trademark is a word, phrase and/or symbol used in commerce. You do not "own" the word. And you can lose a trademark, here's an example:

    You know what a Thermos is, right? Did you know at one point "Thermos" was a trademark? People use "thermos" nowadays to refer to a class of beverage container, when it was once the name of a single product. However, it became too popular and suffered from "genericide" (ie, it became generic, and therefore not protectable by trademark law).

    The line can get blurry at times: what word or phrase is too generic or descriptive to get protection? Compare "Thermos" to "Kodak" or "Xerox". You can use "movie buff" to describe someone freely, and in whatever medium that floats your particular boat. Alas, you cannot use it in connection with commerce as freely. But you're not really itching to go sell access to a database of movies on the internet now are ya?
  • It doesn't say anything about a non-commercial fan site. There are TM issues there too, but they are not the ones discussed in this opinion.


    I don't imagine there would be any likelihood of confusion for a fan site. Even the most clueless of internet newbies can usually grasp the concept of a "fan site". :)
  • Re: your point #1:
    King-Seely Thermos Co v. Aladdin Industries , 321 F.2d 577 (2d Cir. 1963). In the opinion (as quoted in my text "Trademark and Unfair Competition Law" by J. Ginsburg, et al.) states that the King-Seely Co. sold "Thermos bottles" and popularized that term -- from a period of 1907 to 1923. From 1923 to 1950, the term "thermos" had become synonymous with the "vacuum-insulated bottle", of which the King-Seely Thermos bottle was archtypical. King-Seely made a too-little, too late attempt to re-emphasize "Thermos" as a source indicator (the real reason one has a trademark, after all) in the mid to late 1950's and did change its name to "The American Thermos Products Company". Alas, poor Thermos(tm) was dead from genericide. I know we all weep openly. Also:
    • Bayer Co. v United Drug Co., 272 F. 505 (S.D.N.Y. 1921) -- the "Aspirin" case and;
    • DuPont Cellophane Co. v Waxed Products Co., 85 F.2d 75 (2d Cir. 1936) -- the "Cellophane" case.

    Remember, Brookfield is using "MOVIEBUFF" in connection with a commercial enterprise (namely, a computer database of movies). When someone says "movie buff" you don't automatically think "Hey, that's a database of movies!", you think "someone who likes movies".
    Re: your point #2:
    Brookfield is selling a movie database service. "MOVIEBUFF" as a trademark is only applicable to that. Could they publish a "MOVIEBUFF Magazine" as well? Probably, since my search of the USPTO Trademark database only turned up the following links:

    Also remember that just because someone registers a mark, doesn't mean that they have a good hold on that mark. The PTO can't filter every application for a trademark that it gets. That's why they are published for opposition before they are granted. That lets anyone who can object, object to the registration. Betcha West Coast feels kinda lame for not challenging, eh?


    I don't understand your last paragraph: is not Brookfield limited to using "MOVIEBUFF" in "computer software providing data and information in the field of the motion picture and television industries" like the registration statements linked above say? How is this decision expanding anything? I read it and it didn't expand anything absurdedly, IMO. It just clarified the enforceability of registered trademarks as against domain names and meta tags -- logical expansions of traditional trademark theory into a new medium.

  • Many browsers identify themselves as Mozilla, including IE...

    Can microsoft be stopped from pretending to BE a competitors product?
  • "Suppose Blockbuster Video put up a billboard on a highway reading 'West Coast Video: 2 miles ahead at Exit 7,' he wrote. 'Suppose, further, that Blockbuster Video is really located at Exit 7, and another video store, say West Coast Video, is located at Exit 8.'"

    But what if there is a PrimeTime Video at Exit 6 which is only 1 mile away? Furthermore, what if neither PrimeTime nor Blockbuster have the aforementioned Terri Welles Playboy Playmate video, but West Coast Video does, in fact, maintain a "Playboy Playmate" section which contains said video. Is West Coast video in violation of a Playboy trademark which nullifies their cause of action against either Blockbuster or PrimeTime? Furthermore, if a train leaves New Jersey at Exit 9 at 6:00pm traveling towards the West Coast to pick up Playboy Playmates at PrimeTime, what is the airspeed velocity of an unladen swallow?

    /* I have a headache */
  • possibly not the most convincing precedent but an important one nonetheless. indeed, passing-off through dodgey meta tags is bad news! it's hard enough to find what you're looking for on search engines as it is. on the websites i run i'm constantly surprised by the number of referals i get from the like of altavista and ask jeeves. especially considering the number of idiots with those 'websters-on-a-page' catch-alls.

    there was an embarrasing situation for a major australian web developer [ Spike [spike.com.au]] when it was found that they had keywords in their meta tags for other competing design houses in the country. Ouch! Of course they blamed one of their "young and overly enthusiastic" web designers [who coincidentally had left the week before].

    you want my prediction to the next trend in 'sneaky passing-off behaviour to nab hits away from your competitors'?

    image names!

    that's right. say i'm intel -- i'm going to call all my images "amd_####.gif" or "cyrix_####.gif". it'd take a while before anyone noticed!

    OK, so maybe a little implausable. maybe i'm Microsoft and i'm going to call all my javascript variables "apple_####" and "java_####".

    i mean where do you draw the line on this one?

  • Quoted from the New York Times article:

    The court's ruling on the meta tag question was not absolute, however. In a broadly worded section of the opinion, the panel declared that not all uses of another's trademarks in a meta tag were taboo. For example, if a Web site in its visual textual portion compared its goods or services to a competitor's, the Web site operator could include in its meta tag the competitor's trademark as a "fair use," the court said.

    Seems like a good ruling to me. You can still have a fan site/comparison article/whatever with the tag, you just can't blatantly lift it from someone else. Darn.

  • The 9th Circuit Court of Appeals is the most overturned appeals court in the US. (According
    to a radio personality I listen to).

    If there is an appeal in progress, who knows how
    this will stand?

    It's pretty ignorant if you ask me.

    What now? Can people own the English Language?
  • But in the case of general web usage, where a window-frame making company might use "windows"
    in their META tags, but at no other time
    violates MS's trademark, I don't think this
    case applies.

    Seriously, look it up. Do you think they'd be using "tm" instead of (c) if they actually had a registered trademark?
  • They stated that since West Coast Video was using the trademarked name of a movie database software, and that they had similar database on the site, people could be reasonably confused as to if the database was actually the "MovieBuff" database. You can use the "Dodge" and the "Shadow", but don't pass yourself off as the real ChryCo (Sorry, DamilerChrysler).

    The analogy, albeit a poor one, is akin to labeling a restaraunt "Burger King" and all the similar look, and actually serving McDonalds.

    Fair use is still in effect. Just not when you are selling a product similar to another.

    RB
  • Many sites out there are dedicated to raising customers awareness: Bekins [bekins-beware.org] and the ever popular Untied.com [untied.com] and NWA [northworstair.org].

    Bekinsbeware got bekins attention so much that they resolved their differences with the consumer.
    The others frequently voice the complaints. What they do not do is use the logos and symbols of the target company. The court has ruled time and time again that people are free to advertise their disgust with corporations. This does include using the name of the corporation to do the advertising.

    You just can't pass yourself off as the corp or use the name to sell something similar without telling the people you are not actually the corp.

    RB
  • I don't see everyday things named pez. However, I think they are going overboard with all the legal crap. I think Illiad from userfriendly put it best:

    "Don't do bad things. We have lawyers."

    Works on many subtle levels.

    RB
  • I found out why the judge decided to rule the way he did. This case was more than meta tags, but was West Coast Video's use of the term "moviebuff" in the meta tag AND in moviebuff.com

    Brookfield entertainment had for awhile a product that was a database of movies called MovieBuff and trademarked the term right around the same time the domain name was registered by WCV in 1996. Just about 1999/99, Brookfield sent a letter to WCV stating intentions of filing a lawsuit over the use of "moviebuff.com" Next day, WCV "went live" with the site, and the actual opening of the site in 99. WCV argued since it was "The Movie Buff's Movie Store", it could use the domain and the META tag.

    The court ruled, that by using the term "moviebuff" and not "movie buff" (Space included), they were infringing on the the federal trade mark held by Brookfield. They stated that they are competitors since on the WCV site at moviebuff.com, they had a serchable internet database similar to the one used by Brookfield. This is why the courts ruled that way. If they didn't have that database, then the courts probably would have ruled the other way.

    (This is not the first time the Meta tags have come up in court. Playboy seems to have gone apeshit about the terms Playboy and playmate.)

    McDonalds cannot use "Burger King" in their meta tags because they are competitors, so this is a similar analogy to the case at hand. This doesn't restrict the use of everyday terms in your site such as blockbuster or movie buff if you sell movies, but the use of the term moviebuff is now considered off limits.

    Just make sure you aren't using a competitor's trademark to lure people to your site.

    IANAL.

    RB
    "If 50 million people say something foolish, then it is still foolish" - French
    Corrolary:
    "If 90% of the world uses a crappy OS, it is still a crappy OS." - Pryde
  • Gore probly couldn't give a $#!% about the geek vote. The terms "Open Source", "Java" and "Linux have been sensationalized by the media, causing these terms to be fashionable in the rest of society.

    He's using these words because they are buzzwords - the use of these words connotes intelligent and contemporary ideas. (at least to those who don't know what the words mean) Gore is simply trying to distance himself from those staid (Internet is bad! Save the children! censor, censor, censor!) old GOP candidates.

    That said, is this an entirely bad thing? Yes, Gore is coopting our phrases inappropriately. Yes, Gore would appear to have little to no understanding of computers or computer culuture.

    But he wants to know - he appears to understand that tech issues will cause the most important societal changes in the next millenium. He may not understand all the issues, he may not be drenched in the culture - but at least he understands the importance of the issues.
  • Gore is simply trying to distance himself from those staid (Internet is bad!Save the children! censor, censor, censor!) old GOP candidates.

    Of course, Tipper's all in favor of censor, censor, censor, in the form, no doubt, of "completely voluntary" restrictions and labels. And see where it's gotten high schoolers who want to buy controversial albums. Hmmmmm.
  • So what happens when someone buys a FOOBAR(tm) product and fines it horrible. The company refuses to honor any warranty (in the customer's view), refuses to refund the cost, etc.

    So the customer puts up a web page saying how horrid FOOBAR(tm) products are... and uses a META tag intending search engines to show how FOOBAR(tm) products differ from what the sales droids would have you believe.

    The company doesn't want that, of course, and sues for trademark infringement. The customer says that he has a clear First Amendment right to tell other people about the problems he had with that product. After all, he bought it in a store and signed no non-disclosure agreements (and refuses to honor any shrink-wrapped "NDA" since the company refuses to honor the same document's promise of a full refund if the terms are unacceptable.)

    The customer would win, right? After all, the intent of trademark law is to prevent another party from diluting the market recognition of a product, not to suppress dissent Except the proposed UCC 2B appears to contain language that *does* allow a company to suppress criticism of its products.

    This specfic case doesn't involve consumers, but it also illustrates risks in suppressing META tag content. It's one thing for to ban (for instance) another company from selling "kleenex tissues"; it's another thing entirely to essentially tell them that not only can't they call their product "kleenex", they can't even put it on the same aisle in the store!
  • Just a thought... but since the ruling said that "Movie Buff" would be OK, but not "moviebuff", I'm just wondering one thing. How in the world do you get the domain "movie buff.com", complete with the space? ;-)

    -Aaron
  • Also note that West Coast Video didn't have to pay anything (unless that 25,000 bond was forfeit.. and I didn't see that anywhere). Because they weren't in the same business it was ruled that there was no damage. So in otherwords if you use "MS WINDOWS" as a meta tag, and you don't code OS's and sell them, they can't get you for any money. Which seems to me like it's not that big of a threat. (Although my mother is a lawyer so I'd get representation for free (grin)) - However, Linux sites that offer the download, or products might want to be careful. If one thing is a constant it is the fact that Bill Gates has money to pursuit anything.

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