With ever increasing investments and opportunities of M&A in virtual world, the importance of virtual assets and underlying risks is drawing legal and diligence eyeballs. This 2020 era with COVID-19 has acted as a serious catalyst with new normal norms of work from home resulting in more stress to technology and virtual space.
In this regard, one area which is very common yet not considered as important are Meta Tag. What if you search your trademark/ copyright products on Google and get surprised to see the results throw your competitors website way above in rank compared to yours?? Well, it is time that you get yourself introduced to the term ‘meta tags’. While there are various other means to cause the above result, but most commonly employed means is by using meta tags.
Though meta tag is not specifically defined in Indian law, but for the very first time Bombay High Court, in People Interactive (I) Pvt. Ltd. v. Gaurav Jerry, defined meta tags to be “special lines of code embedded in web pages. All HTML (hyper text markup language), used in coding web pages, uses tags. Meta tags are a special type of tag. They do not affect page display. Instead, they provide additional information: the author of the web page, the frequency of updation, a general description of the contents, keywords, copyright notices and so on. They provide structured data (actually, meta-data) about the web page in question. Meta tags are always used in a web-pages ‘
… ‘ section, before the display section that begins with the tag ‘… … ‘”.
Google under ‘Special tags that Google understands’, states that Google supports both page-level meta-tags as well as inline directives to help control how a site’s pages will appear in search. It further states that page-level meta tags are a great way for webmasters to provide search engines with information about their sites.
In simple terms, a website selling wooden furniture with the intent to rank high in search results may use names of various types of woods (e.g. teak, sheesham) and names of products sold (e.g. wooden chair, wooden table wardrobe), as meta tags, so that when a potential customer looking for wooden furniture searches with certain keywords (e.g. sheesham wooden table) then this website throws up in decent ranks. The more such specific words are used as meta tags, better is the positioning of such website in search results. Trademark/ copyrights names are also used as meta tags for better ranking and quick search of a particular website.
Having said that, alarm bells starts ringing when your trademark/ copyright product names are used by your competitors as their website’s meta tags as a result of which their website rank way above your website.
In People Interactive, the Court observed that this is where an illicit use of meta tags can be severely damaging. For, if in meta tags of one website a person uses domain name or other unique identifying marks, characters or name of another, a search engine, being robotized, is bound to confuse the two, and to report that the first and the second are the same. A search for the latter (the original, the victim) is very likely to yield results for the former, the one that has pirated the identifying marks or name. “… There could be no better evidence of passing off, confusion and deception. This is, plainly, hijacking the Plaintiffs’ reputation and goodwill and riding piggyback on the Plaintiffs’ valuable intellectual property.”
In the abovementioned matter, first defendant’s domain name ShaadiHiShaadi.com, inter alia, used the plaintiffs’ proprietary mark In the abovementioned matter, first defendant’s domain name ShaadiHiShaadi.com, inter alia, used the plaintiffs’ proprietary mark shaadi.com and its domain name In the abovementioned matter, first defendant’s domain name ShaadiHiShaadi.com, inter alia, used the plaintiffs’ proprietary mark shaadi.com and its domain name www.shaadi.com as part of “meta-tags” in first defendant’s domain name. Analysis showed that by illicitly plugging plaintiffs’ mark and domain name into website’s web pages’ meta-tags, 1st defendant succeeded in diverting as much as 10.33% and 4.67% of the internet traffic away from the plaintiffs to himself. The court observed that there could be no better evidence of passing off, confusion and deception. And this is, plainly, hijacking plaintiffs’ reputation and goodwill and riding piggyback on plaintiffs’ valuable intellectual property.
The uniqueness and importance of People Interactive matter can be understood from the fact that it has been relied on various matters, including in Christian Louboutin Sas v. Nakul Bajaj.
In Dell Computer Corporation v. RaveClub Berlin dellsuport.com (WIPO case) it was observed that such use of a trademark can create customer confusion or dilution of the mark, which is precisely what trademark laws are meant to prevent. And actions that create, or tend to create, violations of law can hardly be considered to be bona fide.
In today’s digitization era, websites are commonest things any enterprise, be it an age old or start-up, puts up on internet. However, vigilance at regular intervals and expert advise can prevent your goodwill and trademark getting misused by miscreants, which would not only cause loss in revenue to you but might give a toss to your reputation as well. Same applies to loads of investments which carries serious risks to such investors, if this small but important aspect of virtual world, i.e. Meta Tags, are undermined.
Contributed by: Pankaj Agarwal, Partner; Kunal Sharma, Senior Associate.
This is intended for general information purposes only. The views and opinions expressed in this article are those of the author/authors and does not necessarily reflect the views of the firm.
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