Signposts to Oblivion? Meta-tags Signal the Judiciary to Stop Commercial Internet Regulation and Yield to the Electronic Marketplace

• Publication year: 1998

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 2FALL 1998

Signposts to Oblivion? Meta-Tags Signal the Judiciary to Stop Commercial Internet Regulation and Yield to the Electronic Marketplace

Craig K. Weaver(fn*)

I. Introduction to the Meta-Tag Dispute

Location, Location, Location. Even in cyberspace,(fn1) these are still the three most important factors in running a successful business. Just ask Carl Oppedahl, the Internet-savvy lawyer and partner in the Oppedahl and Larson law firm.(fn2) His firm maintains a well known legal page on the World Wide Web.(fn3) Mr. Oppedahl will occasionally enter his firm's name into various "search engine" indexes to make sure users can easily find and access his firm's Web site.(fn4) Mr. Oppedahl, like most Web site managers, is concerned with the location and visibility of his Web site on these indexes.(fn5)

On one of his location checks, Mr. Oppedahl entered the words "Oppedahl" and "Larson" into a popular search engine, AltaVista, and up popped a hit list of many Web sites that met the search criteria.(fn6) Among Oppedahl and Larson's listed entries were links to three Web sites that Mr. Oppedahl knew were unaffiliated with his firm.(fn7) The three mysterious URLs(fn8) were , , and .(fn9) Upon inspection of the HTML code,(fn10) Mr. Oppedahl discovered that each suspect Web page had concealed his firm's name eight times in their hidden programming text through a series of programming techniques.(fn11) The main technique utilized by the three aforementioned Web sites was to refer to "Oppedahl" and "Larson" in the "Meta-Tag" portion of their underlying source code.(fn12)

Meta-Tags, in essence, are signposts that notify search engines of the content of Web sites and facilitate keyword matches. They are "embedded descriptive text that is hidden to the viewer of the page but readable by search engines."(fn13) After discovering the Meta-Tags, Oppedahl and Larson brought an action for federal unfair competition, federal trademark dilution, common law unfair competition, and common law trademark infringement in the District Court of Colorado against Advanced Concepts, Code Team - LBK, Inc., Professional Website Development, and the respective Web site administrators.(fn14) The main allegation underlying all four causes of action is that the defendant's use of "Oppedahl" and "Larson" in their Meta-Tag code caused their Web sites to be confusingly listed on AltaVista's index, resulting in damage to plaintiffs business, goodwill, reputation, and profits.(fn15) Oppedahl and Larson insinuated that the only motivation for the allegedly infringing Web sites including "Oppedahl" and "Larson" in their Meta-Tags was to impermissibly use Oppedahl and Larson's good name to attract users.(fn16)

Mr. Oppedahl's case is a microcosm of potential Meta-Tag disputes and, therefore, is an excellent place to begin analyzing the judiciary's optimal role in regulating Meta-Tag activity. Not only is this the first case to be filed solely on the Meta-Tag issue,(fn17) but it is also likely to be the most blatant example of such abuse. The alleged infringing sites have no affiliation whatsoever with Oppedahl and Larson, competitive or otherwise.(fn18) This lack of affiliation leads to the obvious conclusion that the "infringing" Meta-Tags are in place solely to benefit from Oppedahl and Larson's name in an effort to gain search engine exposure. While the Oppedahl and Larson v. Advanced Concepts case was ultimately settled out of court,(fn19) its facts illustrate the conceptual legal questions posed by Meta-Tag technology.

Oppedahl and Larson is a sign of the electronic times. The judiciary must first define its role in setting the boundaries of the Internet as a fledgling commercial medium before a decision on Meta-Tag regulation can be reached. For electronic commerce to thrive, users need to feel that there is order on the Internet. Without the guiding hand of the courts, this order cannot be achieved. Ironically, established laws and judicial regulation simultaneously threaten the innovation, experimentation, and unique culture that makes the Internet so attractive to both users and commercial investors. It is imperative in this, the early morn of electronic commerce, that the judiciary pick its battles carefully to encourage, rather than stifle, the development of the electronic marketplace. The next stretch of the information superhighway travels right between the Scylla of jurisprudential apathy and the Charybdis of judicial activism. The success of the Internet depends, in no small part, on the judiciary's ability to navigate this stretch of road.

Meta-Tags are not just signals embedded in programming code, they also signal an important juncture for the judiciary on the information superhighway. Courts have already decided to err on the side of regulation when dealing with another harbinger of increased Internet litigation, domain name infringement.(fn20) However, judicial involvement in domain name disputes should not dictate judicial regulation of Meta-Tag abuse. Each unique legal problem posed by Internet technology should be treated like the next fork in the road. Only then can the judiciary ensure the correct balance between indifference and interference.

The judiciary is in a position to support the growth of electronic commerce by exercising prudence when deciding Meta-Tag disputes. Courts should realize that the current source of trademark law, the Lanham Act,(fn21) does not address the unique nature and function of Meta-Tags. While domain names are visible addresses used specifically for locating sites on the World Wide Web, Meta-Tags are invisible programming protocols used to facilitate private search engine indexing.(fn22) Because the relevant test for trademark infringement is the public's likelihood of confusion,(fn23) this visibility distinction makes all the difference in the world. The Lanham Act was simply not enacted to regulate invisible programming code and should, therefore not be used for that purpose. Because there is no law addressing the unique nature of Meta-Tags, courts should defer to the marketplace until a legislative body decides to tailor a law specifically targeted at the problems they create.

The focus of this Comment is not merely to analyze the role of the judiciary in Meta-Tag litigation specifically, but also to use Meta-Tags as a lens with which to examine the potential effect of judicial activism on Internet commerce in general. The first portion of this analysis focuses on the applicability of federal trademark infringement and dilution laws in Meta-Tag abuse suits. The next portion of the article evaluates why market regulation of Meta-Tag abuse is the correct course of action, in the short-term, for ensuring the growth of electronic commerce. The article concludes with a description of potential long-term regulation alternatives and analyzes the practicality of each.

II. Meta-Tag Suits-The First Sign of Commercial Litigation on the Internet?

It is no coincidence that one of the first significant commercial disputes on the Internet is in the Meta-Tag context. Even though President Clinton in his A Framework for Global Electronic Commerce(fn24) predicted that "commerce on the Internet could total tens of billions of dollars by the turn of the century,"(fn25) the Internet's primary purpose continues to be communication and information retrieval.(fn26) Not surprisingly, most substantive Internet litigation to date has dealt with issues pertaining to the legality of making certain images and speech publicly accessible.(fn27) However, as a new commercial dawn is breaking and President Clinton's prediction is coming to fruition, the first commercial Internet litigation has emerged in the arena of trademark law.(fn28)

Domain name and Meta-Tag disputes are the first manifestations of the inevitable onslaught of commercial litigation that Internet technology will create. As companies begin to use the World Wide Web to facilitate business transactions rather than to facilitate information gathering like advertising, commercial Internet disputes are certain to multiply exponentially. Courts have already decided to regulate domain name infringement through the provisions of the Lanham Act,(fn29) rather than allowing either the marketplace or Network Solutions, Inc. (NSI), a private domain name provider, to correct the problem.(fn30) Courts now must decide whether the hidden programming text at issue in Meta-Tag suits is analogous to the visible addresses at issue in domain name disputes. This determination will dictate whether the Lanham Act's "likelihood of confusion" test is applicable in the Meta-Tag context.

The argument that Meta-Tags confuse users is presumably fueled by the concern that Internet-savvy companies are able to use them to siphon users from their direct competitors. At first blush, this concern seems well-founded in that Meta-Tag disputes are more likely to arise between companies competing in similar markets than between totally unrelated companies.(fn31) For example, the District Court for the Eastern District of Louisiana granted Insituform Technologies' request for an injunction against National EnviroTech Group, which embedded Insituform's name in its Meta-Tag code.(fn32) The companies are direct competitors in the trenchless pipeline market.(fn33) As part of the ruling, National EnviroTech...