Suppose you totter home from a boozy night only to discover that you have lost your keys. Equipped with a smartphone, you Google the words “24/7 locksmith”. The search yields a list of locksmiths all eager for your business. According to rudimentary statistics, you have a 33% chance of clicking the first listed site, a 15% chance for the second, a 7% for the third and thereafter the clickthrough rates decrease in an exponential fashion. Now If I’ve offended readers, either with the use of statistics or with an unflattering allegory, know that I do this solely for the purposes of exposition- it is to highlight the reason why businesses are constantly jockeying for the highest listing on google.
Businesses employ a host of tactics in an effort to maximise the number of visitors to their website (a process called search engine optimisation). One tactic is to create effective ‘meta tags’. Meta tags are keywords that describe the content of a webpage- essentially, they are snippets of text that help the search engine index results. Meta tags are not visible on the webpage itself. Hence, some businesses attempt to levy off the popularity of their competitors by using keywords associated with a rival business. The recent case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd cautions this practise. In that case, the Full Federal Court found that the unauthorised use of a registered trademark within a meta tag constituted trademark infringement. Importantly, the defendant business was unable to divert liability onto its website developer. The court found that although the site was created by an independent IT consultant, the business nonetheless had control over the website and was at least acquiescent of the infringement.
The court was not swayed by the fact that meta tags do not appear in the website itself. It is this point that has attracted commentary. One commenter noted that as philosophers ask ‘if a tree falls and no one hears it does it make a sound?’, IP lawyers ask ‘If a trademark is copied and no one can see it is the trademark infringed? But herein lies the error. As the court acknowledged, people can see meta tags so long as they know where to look. For those interested, meta tags are contained within a webpage’s source code which is viewable within the developer settings of most web browsers
The case of Accor Australia is used to springboard three key lessons for businesses. First, the use of meta tags may constitute a trademark infringement. Whether or not an infringement actually occurs requires an analysis of the circumstances. However, as a loose guide, if certain text were to infringe a trademark as it appeared in standard advertising material, then that same text is likely to constitute an infringement if it placed in a meta tag. Despite recent developments, there remains a penumbra of questionable tagging practice. Rankin & Co urge businesses to seek legal advice if in doubt.
The second and more onerous lesson is that businesses cannot automatically divert responsibility for trademark infringement onto their website developers. The Federal Court finds no excuse in ignorance. Although website coding may appear whimsical and complicated to the uninitiated, it is nonetheless a tool employed for the purposes of promoting a business and as such the business can be responsible for its misuse.
Finally, this case highlights the importance of seeking legal advice before embarking in promotional activities. Too often businesses, particularly start-ups, shelve their legal concerns. Too often, these concerns are dismissed as something to be ‘worried about later’ and too often they come back to bite.
Rankin & Co is committed to helping businesses navigate these recent changes in IP law. The content of this article is intended for general interest purposes only and does not constitute legal advice. Contact the IP lawyers at Rankin & Co for specialised advice.