When SEO Backfires: Trade Mark Infringement Through Meta Tags

Online visibility has become a critical asset. Businesses invest significantly in search engine optimisation (SEO) to improve their rankings and attract potential customers. One common tool is to utilise meta tags in a website’s code to help search engines understand a page’s content.

Although these tags are not visible to the average user, courts have recognised that improper use may infringe intellectual property rights and mislead consumers. So businesses are quickly learning that misusing meta tags might boost your rankings, and your risk of litigation too.

What Are Meta Tags?

Meta tags are pieces of HTML code embedded in a website’s header, designed to provide metadata about the page. While they are not displayed on the page itself, they play a key role in how content is indexed and ranked by search engines. Their function is primarily technical, but courts have increasingly recognised the potential to infringe intellectual property rights. It turns out, what is buried in the code can still dig up legal trouble.

Key Australian Case: Accor v Liv Pty Ltd

The risks associated with hidden trade mark use were considered in the Federal Court decision of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56. In this case, Liv Pty Ltd operated accommodation services in Cairns and had embedded the term “Harbour Lights Apartments” in its website’s meta tags and source code. What they did not know is, that term was a registered trade mark owned by Accor.

Although the term was not visible to users, the court found that its use still constituted trade mark infringement. Importantly, the court held that source code can be considered “visible” in a legal context because it can be accessed and reviewed, especially by competitors. The court also rejected the argument that outsourcing the website development absolved the business owner of responsibility.

Additionally, the decision highlighted that using a competitor’s trade mark in meta tags can amount to misleading or deceptive conduct, trade mark infringement under the Trade Marks Act 1995 (Cth), and potentially a breach of the Australian Consumer Law. This has heightened businesses accountability for their website content, even where it is not visible to the users.

The United States Perspective:

This issue has also been explored in the United States, where courts have reached similar conclusions regarding the unauthorised use of trade marks in meta tags.

In Brookfield Communications Inc v West Coast Entertainment Corp, 174 F.3d 1036 (9th Cir, 23 April 1999), the court found that the use of a competitor’s trade mark (“MovieBuff”) in meta tags constituted a form of “initial interest confusion.” It was held that this was a form of deception where a consumer is momentarily misled into visiting a competing website, on the misunderstanding that it is affiliated or endorsed by a competitor.

On the other hand, the courts have also acknowledged legitimate uses of trade marks in meta tags under certain circumstances. In Playboy Enterprises Inc v Welles, 279 F.3d 796 (9th Cir, 11 February 2002), the court found that a former Playboy model’s use of “Playmate of the Year” in her meta tags qualified as nominative fair use, as it was a factually accurate description. This distinction underscores the importance of context and intent in determining whether meta tag use is lawful.

These United States decisions highlight the importance of context in assessing trade mark use online. While not binding in Australia, they may offer persuasive guidance where businesses use competitors’ trade marks to attract or redirect consumer traffic. Such examples demonstrate the way in which the courts are adapting to the complexities of modern SEO practices and introducing new legal considerations which businesses must navigate.

Conclusion

It is clear that strategic use of meta tags can give your business a competitive edge, but if misused, they can also land you in court. As digital marketing techniques continue to evolve, courts are adapting to protect trade mark owners against deceptive online practices.

If you are unsure whether your site’s content or SEO strategy might cross legal boundaries, it's wise to consult a legal professional. Staying compliant not only protects you from legal action but also builds credibility and trust with your audience.

At BlackBay Lawyers, we help businesses navigate the intersection of digital strategy and trade mark law. Whether you're looking to strengthen your online presence or ensure your SEO practices stay compliant, our team offers practical advice tailored to your commercial objectives. If you’re concerned about trade mark use in your website or marketing materials, get in touch with us today.

The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.

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ABOUT THE AUTHOR

Katie O'Brien is an enthusiastic and driven member of our team. With a genuine focus on understanding each client’s unique needs, she uses her legal expertise to craft tailored strategies that deliver exceptional results.

Katie focuses on assisting clients in areas of defamation, social media, creative industries, employment law, and commercial litigation. Holding a Bachelor of Laws and a Bachelor of Media (Public Relations and Social Media) from Macquarie University, Katie applies her legal knowledge and strong understand of the digital world to expertly navigate the unique challenges arising in these sectors.