September 25, 2006
Outdated Metatags Don't Infringe--Pop Warner v. NH Youth Football & Spirit Conference
By Eric Goldman
Pop Warner Little Scholars, Inc. v. New Hampshire Youth Football & Spirit Conference, 2006 WL 2591480 (D. N.H. Sept. 11, 2006)
Metatag lawsuits befuddle me for two reasons. First, and most importantly, KEYWORD METATAGS ARE IRRELEVANT from an indexing standpoint because they are ignored by most search engines. It's worth repeating, because the message hasn't yet reached everyone. KEYWORD METATAGS ARE IRRELEVANT for all practical purposes.
Second, even if metatags did matter (WHICH THEY DON'T), I can imagine very few circumstances where they "divert" enough customers who generate enough revenues to cover the litigation costs. (This is particularly true in this case, where it's not clear to me how consumer diversion affects any financial interests). If it were up to me, I'd much rather invest those litigation dollars in real marketing, not in fighting over the hypothetical lost sales of "divertable" consumers--assuming that there is such a thing. (For more on this point, see here).
With these two points in mind, perhaps you can appreciate how the latest metatag case completely mystified me. The gist: the NHYFSC was once affiliated with the Pop Warner league. During that time they registered a domain name based on the acronym and put the term "Pop Warner" in the metatags. NHYFSC bolted to a rival league, removed most metatags (but missed some) and kept using the acronym domain. Litigation ensued.
With respect to the metatags, the court says:
Plaintiffs give considerable weight to the fact that on many Internet search services such as Google, defendants' web site will continue to be associated with Pop Warner long after the metagags [sic] are changed. Although such search results may be due to defendants' old metatags, any continued use of the data in those metatags is not the fault of defendants, but rather, of the inefficient or inaccurate search algorithms employed by the operators of Internet search tools. Put differently, defendants used the plaintiffs' marks on their web site, including the metatags, when they were authorized to do so. When such authorization was terminated, defendants' use of the marks ceased. That Google and other search tools continue to associate defendants' web site with plaintiffs' marks even after the metatags have been changed may demonstrate a problem with the methods by which search web sites operate, but that is not an issue that can be easily resolved by the defendants.
Can you see my confusion? The court is analyzing how search engines deal with outdated metatags--an incomprehensible topic given that the metatags were never indexed in the first place. The ironic thing is that the court "blames" the "inefficient or inaccurate search algorithms employed by the operators of Internet search tools"--except, search engines aren't that inefficient or inaccurate given that THEY ARE SMART ENOUGH NOT TO RECOGNIZE KEYWORD METATAGS IN THE FIRST PLACE. So, exactly who is "inefficient and inaccurate"? I'd start with the plaintiff's counsel for their bogus and outdated arguments...
(So why is NHYFSC still showing up? NHYFSC also appears to have used the term in its main text, and the search engines might not have reindexed the revised site. Or, it could be due to anchor text on third party sites.)
At least we can find a silver lining here--the court didn't hold the defendant liable for trademark infringement based on the phantom metatag effect, unlike some other recent courts that still don't get it.
UPDATE: My top AdSense ad today?
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Perhaps because the fact that search engines index metatags has been stated by so many courts that it's now a matter of law controlled by stare decisis, rather than a matter of fact. Next thing you know, courts will be asked to hold that search engines that don't index metatags are violating that conclusion of law. You know, they're violating an implied covenant, or maybe the're engaged in nunc pro tunc reverse antidilution.
Posted by: James Grimmelmann at September 25, 2006 08:16 PM
Funny! I can't wait to see the fine levied against Google for violating that order. Eric.
Posted by: Eric Goldman at September 25, 2006 09:34 PM
I agree that the use of metatags by themselves may not rise to trademark infringement (much like the hidden triggers for advertisements used by adware). However, in combination with other evidence, metatags that are identical to a plaintiff's trademarks can be powerful evidence of bad faith or passing off. Why else would the defendant be using the trademarked terms in the metatags in the first place, except to confuse/divert?
Posted by: John Ottaviani at September 26, 2006 08:53 AM
i do agree with u all but from my experiences i learned that still now search engines pay respect to meta tag, some of my site page are listed because of the relevent meta tags
Posted by: readerstuff at September 30, 2006 08:38 AM