U.S. District Court in Ohio recently found that use of a competitor’s mark as a metatag on a Web site creates “initial interest confusion,” thereby subjecting the defendant to liability for the metatag use. In Tdata v. Aircraft Technical Publishers, use of ATP’s trademark in metatag data in software developed by Tdata that draws potential ATP customers to Tdata Web sites was challenged by ATP. ATP sought to enjoin Tdata’s use on the basis of initial interest confusion, a new doctrine for the court in this context, and of unfair competition.
Applying the initial interest confusion doctrine to metatags was novel for the Court, although the doctrine had previously been applied in the domain name context by the Ninth Circuit Court of Appeals. We encourage our clients to review the metatags in competitor’s Web sites. If your mark is found, we suggest contacting us for a discussion as to the appropriate course of action.