Search Engines, HTML, and Trademarks: What's the Meta For?

Abstract

Search engines are the cartographers of the electronic frontier. In real space, a person wishing to travel to an unknown destination might consult a map or ask someone else for directions. In cyberspace, Web users consult search engines. Since novelty and unfamiliarity are often the most salient features of the Internet, leading search engines have become the central portals into cyberspace. Keyword meta tags are a way in which the locales of cyberspace (individual websites) communicate with the cartographers and portals of cyberspace (the search engines) and describe their pages to the search engines in an attempt to be found more easily. This meta tag communication involves transmitters and receivers operating at cross purposes. Website owners are motivated simply by a desire to be found: search engines direct the traffic of the Web, traffic translates into fame and/or revenue, and therefore sites inevitably wish to be displayed to as large a number of Web users as often and as prominently as is possible. This Note hopes to contribute to clarifying the doctrine regarding the legality of meta tag use when that use allegedly infringes on trademark rights. In Part II, I provide a brief introduction to trademark law and the Web. In Part III, I propose some new metaphors for keyword meta tags, search engine listings, and description meta tags, which I feel provide a closer fit to the realities of the Web. In Part IV, I divide legally problematic meta tag use into four categories: page jacking, spamdexing, editorial use, and competitor use. In Part V, I conclude by arguing that the application of traditional law works makes sense in the case of description meta tags, but is unwise in the case of keyword meta tags.