Meta advertising: can the use of meta tags infringe trademark rights?

Who: The Transocean Marine Paint Association (Transocean), Pinturas Eurotex S.A. and Industrias Quimicas Eurotex S.L. (together referred to as: Eurotex)

Where: The Netherlands (Court of The Hague; ECLI:NL:RBDHA:2019:6247)

When: 19 June 2019

Law stated as at: 30 July 2019

What happened:

Transocean is a global association for manufacturers of ship paint. Transocean grants licenses to its members for the use of its trademarks and know-how. Eurotex was registered with Transocean, but decided to terminate its membership. The parties consequently entered into a settlement agreement, under which Eurotex agreed to stop using Transocean’s trademarks. Although Eurotex seemed to stop using Transocean’s trademarks, it continued using meta tags on its (Spanish) website, which Transocean claimed to be infringing certain word trademarks.

Meta tags are lines of code in the Hypertext Markup Language (HTML) that describe the content of a webpage. These are not visible to (normal) website visitors, but are incorporated in the source code of the website. Meta tags are primarily used for search engine optimization (SEO).

The Dutch court had to determine whether the use of these meta tags by Eurotex was affecting the brand ‘Transocean’ and/or was causing danger of confusion with the public. The European Court of Justice had previously ruled that meta tags used in the meta data of a website are to be regarded as “advertising” within the meaning of the European directives concerning misleading and comparative advertising.

Nevertheless, the court ruled that Transocean failed to adequately substantiate its position. In order to have substantiated its position, Transocean would needed to have established that the use of the meta tags was: (i) affecting (one of) the function(s) of its brand; (ii) causing danger of confusion; or (iii) granting unjustified advantage to Eurotex or being detrimental to the distinctive character or reputation of the trademark.

In its judgment, the Dutch court deemed it important that the meta tags were not visible to website visitors. The fact that the use of meta tags resulted in the Eurotex website appearing before the Transocean website in search engine results, proved insufficient for establishing trademark infringement.

Why this matters:

In general, a trademark owner has the right to oppose to the use of its trademarks in search engines by competitors. However, the standalone argument of Transocean of the adverse consequences of the meta tags used by Eurotex on its own search engine results was found not to have met the conditions required for trademark infringement under Dutch law.

Practically, this means that in the Netherlands, meta tags referencing other brands or products, can be used by companies to distinguish goods or services online. For a trademark owner to substantiate a valid claim against the use of meta tags including, for example, its brand name, negative SEO results are not enough.

This judgment opens the door to the use of brands, product names or slogans in meta tags, for example by competitors and start-ups, as long as this is undertaken with caution and such use will not be detrimental to the brand or could cause confusion amongst consumers.

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