Use of another's trademark as a "meta tag"

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In order to locate a company's web page or a web page that deals with a particular topic, many users rely on search engines such as Alta Vista, Lycos, HotBot, Infoseek and ExCite. Most search engines utilize programs that read the entire content of web pages, and categorize the pages. In an effort to manipulate the way in which their page is categorized, web page designers often include meta tags in the source code. Meta tags are words that serve a function similar to the "subject" words in a library catalog entry. Most search engines rely heavily on meta tags when categorizing web pages. The meta tags can only be viewed in the source code, and is not ordinarily displayed by the web browser. For example, although not all of the terms appear on the screen, the source code for the Westword newspaper web site contains over two-hundred meta tags.

Thus, through the use of meta tags, a competitor or other party does not need to use a company's trademark in its domain name or anywhere in the page's visible text in order to attract attention to its site. Web page designers can achieve similar results by putting colored text in their page that matches the background color.

In Playboy Enterprises, Inc. v. Calvin Designer Label, the Court granted Playboy a preliminary injunction and enjoined the defendant from using the trademarks Playboy and Playmate "in buried code or metatags on their home page or Web page . . . ." The problem with the defendants' use of the terms as meta tags is that search engines, when asked to locate Internet sites containing "Playboy" or "Playmate," would list the defendant's site. It may not always be obvious to the user viewing a list of found web pages which web page is actually sanctioned by Playboy.

However, in Playboy Enterprises, Inc. v. Welles, the Court held that Terri Welles, Playmate of the Year 1981, could continue to use the terms "Playboy" and "Playmate" as meta tags, and could display the titles "Playmate of the Year" and "PMOTY '81" in her web page. The Court held that the "fair use" defense applied. "[W]here the mark is used only to describe the goods or services of a party or their geographic origin, trademark law recognizes a fair use defense." According to the Court, Welles used the term "Playmate of the Year" to describe herself. The Court further noted that:

Ms. Welles has minimized her references to Playboy on her website and has not attempt to trick consumers into believing that they are viewing a Playboy-endorsed website. . . . In the case at bar, Ms. Welles has not created a Playboy-related website. She does not use Playboy or Playmate in her domain name, she does not use the classic Playboy bunny logo, she inserted disclaimers which clearly state that the website is not endorsed by [Playboy], and the font of the Playmate of the Year 1981 title is not recognizable as a Playboy magazine font.


The Court went on to hold that Welles' use of the phrase "Playmate of the Year 1981" and "PMOTY '81" was a "fair use" since she was describing herself. The Court also held that Welles could continue to use Playboy's trademarks as meta tags.

With respect to the meta tags, the court finds there to be no trademark infringement where defendant has used plaintiff's trademarks in good faith to index the content of her website. The meta tags are not visible to the websurfer although some search engines rely o these tags to help websurfers find certain websites. Much like the subject index of a card catalog, the meta tags give the websurfer using a search engine a clearer indication of the content of a website. The use of the term Playboy is not an infringement because it references not only her identity as a "Playboy Playmate of the Year 1981," but it may also reference the legitimate editorial uses of the term Playboy contained in the text of defendant's website.

Because the Court found that Welles' was entitled to the "fair use" defense, the Court held that Playboy "cannot make a sufficient dilution claim . . . to warrant the granting of a preliminary injunction."

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This is a frequent practise among many people who wish to use another websit'es popularity to gain its own edges . Successful businesses spend a tremendous amount of time and effort to develop name recognition and good will. They should periodically monitor the source code of web pages that turn up in Yahoo, AltaVista or other search engines to see if their trademarks are being used to divert traffic. These words inserted in a web site are invisible to the human user but all too perceptible to the search engine, which counts these hidden words as if they appeared on the screen.