Wednesday, May 21, 2008

Have Metatags Lost Their Relevance in Trademark Disputes?

In Standard Process v. Banks (opinion here:, the court held: "Dr. Banks [admittedly] used Standard Process trademarks in the metatags of his website. However, today 'modern search engines make little if any use of metatags.' [Citations omitted.] As more and more webmasters 'manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.' [Citations omitted.] Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it."

The court relied heavily on this rationale to find no initial interest confusion between plaintiff's marks and the content on defendant's website.

Interesting! I would still employ caution before engaging in wholesale replication of my competitor's marks in my metatags, though.

Attention All You Kazaa Users!

A federal court in Arizona has denied RIAA's motion for summary judgment, rejecting the "making available" theory of copyright infringement, in an action against two Kazaa users, who appeared pro se. In Atlantic v. Howell, the court held: "The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. . . . Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution." You can see the opinion here:

The key appears to be that Howell never placed the songs (that he asserted were copies ripped by him from CDs that he owned) in a SHARED Kazaa folder! Listen well and learn, all you Kazaa users!