® BuscaLegis.ccj.ufsc.br
Lloyd L. Rich
Introduction
During the past few years
commercial use of the Internet has boomed to the point where publishing
companies -- whether they be a Random House, a small niche publisher or a
self-publisher -- look upon opportunities from owning their own website as a
relatively inexpensive marketing cost for increasing company recognition, sales
and profits for their individual titles and product lines. As publishers begin
to more actively utilize the World Wide Web for promotion of their company and
products they should become more knowledgeable of Internet issues that may
affect their online marketing efforts.
The Internet Legal Issues series
that is being launched with this article on "Metatags" will
periodically discuss Internet legal topics that publishers should understand if
they intend to use their website as a marketing vehicle.
Trademark, Unfair Competition Law
& the Right of Publicity
One of the guiding principals of
trademark and unfair competition law is the protection of the commercial value
in trademarks and trade names. In addition the right of publicity protects the
commercial value of the name or persona of a "famous" personality.
Trademark, unfair competition and right of publicity legal actions generally
result from infringement claims based upon conduct that confuses or misleads
consumers to the commercial detriment of the owner of the trademark, trade name
or personal name. This complained of activity is as pressing a matter in the
physical marketplace as it is in the online marketplace.
What are Metatags?
Metatags are invisible hypertext
mark-up language; commonly referred to as HTML code that is inserted in a
website by the website owner. The metatags generally consist of key words and
phrases that describe the content of the website. Their purpose is to enable an
Internet search engine, such as HotBot, Infoseek or Alta Vista, to read the
metatags and identify the website containing the respective meta-tag as a
relevant website with respect to a particular search word or phrase.
An example of how a publishing
company might use metatags is the following. XYZ Publishing has recently
published a book on the subject of parenting, entitled How To Be A Better
Parent, and one of its marketing objectives is to publicize this title on its
website. In an attempt to attract more viewers to its website the promotional
copy for How To Be A Better Parent contains numerous references to the word
"parenting" and variations on that word such as "parent",
"parents", and "parented". In addition the website
programmers could also include invisible metatags that contain the word
"parenting" and its variations in the website. If an individual
performed an Internet search on the word "parenting" the respective
search engine would look for the word "parenting" and its variations
in the visible text of the XYZ Publishing website -- the promotional copy for
How To Be A Better Parent -- as well as the invisible metatags.
By inserting the metatags the
programmers are attempting to increase the likelihood that a particular website
will be ranked higher than another website. Many search engines rank a website
based upon the number of times a word or phrase is used in the website as well
as on where the word or phrase is located on the web page, with greater
importance being accorded if the word or phrase is used at the beginning of the
web page. Therefore, it is more likely that an Internet search on the word
"parenting" would result in finding the XYZ Publishing website and
the book How To Be A Better Parent if the promotional copy frequently repeated
the word "parenting" and its variations and if metatags using the
word "parenting" and its variations were placed at the beginning of
the web page as well as throughout the remainder of the web page. By using the
metatags in this manner it is possible that a search engine would determine
that the XYZ Publishing website was the most relevant response for a search on
the word "parenting". By now you may be asking yourself is there
anything wrong or illegal with the way XYZ Publishing used metatags in an
attempt to increase the probability that the XYZ Publishing website would be
found? The answer would be no and that the use of metatags was a good marketing
strategy; that is unless the word "parenting" or one of its variations
was a trademark owned by another entity.
Rule: Properly use metatags as
part of your marketing strategy to bring web surfers to your website.
Invisible Infringement
It is also possible for XYZ
Publishing in an attempt to increase the viewership of its web page to utilize
other owner's trademarks or identifications in its metatags. This can be
illustrated by once again using as our example the XYZ Publishing's promotion
of the book How To Be A Better Parent. In this scenario the programmers could
be instructed to incorporate metatags in the XYZ Publishing website of words,
phrases or names that are readily recognized with respect to the subject matter
of parenting such as "Parenting Magazine", "Dr. Spock", or
the titles or names of well-known parenting books, programs, famous individuals
or companies that the consumer identifies with the topic of parenting.
In this case if an Internet user
searched on the name "Dr. Spock" it might result in their finding the
XYZ Publishing web page and its book How To Be A Better Parent that was not
authored by Dr. Spock. The Internet user is brought to the XYZ Publishing
website through XYZ Publishing's use of another's trademark or identification.
Since metatags are generally invisible to the viewer of the website when that
page is opened by a web browser the Internet user may now be left wondering and
confused why he/she is now looking at the XYZ Publishing web page and not at a
Dr. Spock website.
Once again you may be asking
yourself whether there was anything wrong or illegal with the way XYZ
Publishing used the metatags in an attempt to increase the probability that the
XYZ Publishing website would be found? This time the answer would be that it is
highly probable that the inclusion of another owner's trademark or
identification in the XYZ Publishing metatags may have constituted trademark
infringement, dilution, false advertising or right of publicity violations.
Recently there have been a number
of court decisions involving the issue of alleged misuse of metatags. In
Playboy Enterprises, Inc. v. AsiaFocus, Inc. a federal court in Virginia held
that the inclusion of Playboy's "Playboy" and "Playmate"
marks in metatags constituted trademark infringement and dilution. In Niton
Corp. v. Radiation Monitoring Devices, Inc. a Massachusetts federal court ruled
that Radiation Monitoring Devices ("RMD") use of Niton's metatag
descriptions to attract Internet users to RMD's website was likely to result in
consumers believing that RMD was also known as Niton, that RMD was affiliated
with Niton and that RMD made the products marketed by Niton; the court enjoined
RMD from using its website to imply any association between itself and Niton.
Playboy Enterprises was also successful in Playboy Enterprises, Inc. v. Calvin
Designer Label in enjoining the unauthorized use of Playboy's
"Playboy" and "Playmate" marks in metatags, but was
unsuccessful in Playboy Enterprises, Inc. v. Welles in preventing a former
Playmate's use of the words "Playboy" and "Playmate" as
metatags because her use was fair use on the basis that the marks were not
being used to compete with or suggest endorsement by Playboy of her website.
Rule: Do not misuse metatags by
using trademarks, trade names or names of personalities owned by another
without their permission.
Conclusion
Legitimate metatag use will
continue to play a growing and more significant role in marketing a publisher's
books by enabling web surfers to more easily find the publisher's website and
information on a particular title, but it is also likely that the deceptive use
of trademarks, trade names and names of personalities will also increase.
Although the misuse of metatags may be illegal it is frequently difficult to
catch. Therefore, as a means of caution a publisher who has important
trademarks or trade names should periodically perform a search engine search of
their trademarks or trade names to detect any misuse.
Retirado de: http://www.publaw.com