Meta tags may infringe trade mark rights

25 April 2007

Julia Bröcher

By its "Impuls"-decision of 18 May 2006 (file no. I ZR 183/03) the German Federal Court of Justice (FCJ) strengthened trade mark holders’ rights against invisible uses of trade marks in internet advertising. The court held that the deployment of a third party’s trade mark as a meta tag in the course of business has to be regarded as an infringing use of the designation in question.

Meta tags are terms inserted into the source code (html) of a website and function as catchwords although they are not visible to a user looking at the site. They give information about the content of a webpage, most often to help search engines categorise them correctly. As a result they can give a website a higher ranking on the results list of search engines.

The claimant in this case offered consulting services for comparing private health insurance carriers under the company names "Impuls Medienmarketing GmbH" and "Impuls Finanzmanagement AG". The defendants operated in the same sector and used the term "impuls" as a meta tag on their website. This was regarded as an infringing use by the FCJ. The court derived the likelihood of confusion from the fact that the results list of search engines displays the website of the defendants and therefore directs the internet user to similar services.

With its decision the FCJ puts an end to the contradictory case law of several courts of appeal with regard to the question whether the application of meta tags constitutes "trademark use" as a prerequisite for an infringement. The FCJ’s ruling shows a rather broad interpretation of what amounts to "trademark use" if one bears in mind that meta tags cannot be perceived by the average internet user and courts in other jurisdictions have suggested that infringement requires perception of the designation by users.

In practice, meta tags no longer play a major role in search engine optimisation. Nonetheless, the ruling is of importance for other forms of trade mark-based contextual advertising on the internet such as keyword advertising (e.g. Google AdWords).