The case of Red Label Vacations Inc. (Redtag.ca) v 411 Travel Buys Limited dealt with two competing travel service companies; Red Label, established in 2004, and 411 Travel Buys, established four years later in 2008. 411 Travel Buys, upon their establishment, embarked on the creation of a website for the business, hiring a student as an intern to do so, directing her to look at other more established site for inspiration and guidance on what worked (including Red Label's website Redtag.ca). As a result some metatags were copied over from Red Label's website onto the 411 Travel Buys' site, incorporating some of Red Label's registered trademarks (including the phrases "redtag.ca vacations" and "Shop. Compare. Pay less!! Guaranteed"). The phrases were not visible on the page, but were incorporated in the site's metatags in their entirety, among many other words and phrases. Upon discovering this in 2009, Red Label took 411 Travel Buys to court, asserting copyright infringement in the phrases and the infringement of their registered trademarks.
|Metadata can be surprisingly revealing|
The second point (as Justice Webb easily dismissed any claims on passing off, again affirming the first instance judgment) dealt with copyright. The point was brief, agreeing with the Federal Court Judge, who saw that "[w]hile in some cases there may be sufficient originality in metatags to attract copyright protection when viewed as a whole, the substance of the metatags asserted by the Plaintiff in this case does not meet the threshold required to acquire copyright protection in Canada". What the Federal Court Judge deemed was a lack of any degree of skill or judgment used by Red Label, or sufficient originality, to afford the metatags any level of protection through copyright. The Court therefore rejected the appeal as a whole.
Initial interest confusion was discussed in more detail by the judge at first instance, and Justice Dawson, in her concurrent judgment to Justice Webb, briefly touched on this: "The extent to which a trademark may be used in metatags without infringing the trademark is, of necessity, fact specific. These reasons ought not to be read as endorsing the Judge’s remarks relating to “initial interest confusion” or as endorsing every alternate basis on which the Judge dismissed the action".
In the UK metatags have been discussed, although not in many cases, most recently in Interflora Inc v Marks and Spencer Plc, where the High Court (after a CJEU referral) deemed the use of a competitor's trademarks as metatags would infringe their rights in those marks. Going contrary to the Canadian Court of Appeal, they endorsed the initial interest confusion theory, potentially adding an additional lawyer of complexity to metatag cases in the UK. The Court of Appeal disagreed, and remitted the case back to the High Court for retrial (currently still pending). This leaves the situation with metatags unclear in the UK, but remains as insight into the application of IP rights in metatags for the time being.
In the United States the question has not been answered definitely, with different Circuit Courts taking different approaches. In Brookfield Communications, Inc v West Coast Entertainment Corporation metatags were seen as infringing a registered trademark (constituting a use of the mark), even though the tags are not communicated to the public as a part of the website. On the other hand, in S&L Vitamins, Inc v Australian Gold, Inc, it was deemed this was the case, and that the incorporation of metatags would not constitute a use of a mark and therefore infringe it.
As can be seen, the status of metatags and trademarks is quite uncertain, although the Canadian perspective seems a lot more clear. In any event, the use of such tags is a big part of the operation of the Internet and search engines like Google, and thus do carry a great deal of value if used properly. This writer would be for more stricter approaches in protecting certain terms in metatags; however, there should be no monopoly on the use of more 'generic' terms to facilitate a more functional and competitive online marketplace.