Want to improve your Google ranking? You need to be careful how you, and your web designer, go about this or you could find yourself in a Federal Court case such as the one below…

One of the strategies used by businesses and their website designers to improve their ranking in internet searches is to include certain keywords or ‘metatags’ into the code. If including a competitor’s business name as a metatag in the code for your website would increase your ranking, would you do it? What if your web designer says that it is common practice and noone will even see it?Metatags are not displayed on the computer screen, and therefore are not visible to the ordinary person browsing the site. Instead, they sit in behind it and are used by search engines, like Google, to determine search results.

Harbour Lights Case

A recent Full Federal Court decision(1) relating to a residential complex in Cairns dealt with the use of a metatag, “Harbour Lights”. The developer owned the registered trade marks “Harbour Lights” and “Cairns Harbour Lights” for rental and accommodation letting services. It licensed the use of those trade marks to Accor, the appointed onsite letting agent. The defendant operated a business in competition with Accor’s short-term letting operations.

The developer and Accor sued the defendant for a great number of trade mark breaches. This article focuses only though on the metatag issue.

The defendant’s website used the term “Harbour Lights” in its source code. The developer and Accor argued that this infringed their registered trade marks. The trial judge agreed, finding that the defendant had infringed their trade marks. This was not disturbed on appeal.

The trial judge accepted that the code “was visible to those who know what to look for”. On appeal, it was noted that the code was “used by a search engine (such as Google)”. So, it did not matter that the ordinary user of the site could not see the mark “Harbour Lights” which was being used by the defendant.

The words “Harbour Lights” had been written by defendant’s IT consultant. The trial judge inferred that this was done with the defendant’s acquiescence, given it was for the defendant’s benefit. So, the defendant was still found to have unlawfully used the trade mark.

Conclusion and Recommendations

Prior to this case, the position in Australia was that use of a registered trade mark as a metatag did not constitute trade mark infringement. Clearly, this is no longer true and such use can amount to infringement.

We recommend that businesses review their source code (or discuss it with their website designer) and remove any trade marks owned by another business.

We also recommend that businesses with registered trade marks carefully monitor for any improper use by their competitors.

Lastly, the case highlights the value of trade mark protection and the benefits of a solid intellectual property portfolio.

If something similar has happened to you, or if you would like assistance with trade marking your intellectual property, please contact Kane Williams, Associate.