Technology Law Column

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Published in the Chicago Daily Law Bulletin, September 11, 1997 at page 6.

Hidden Code Sparks High-Profile Lawsuit.

Copyright 1997 by David Loundy


An interesting law suit was recently filed in the U.S. District Court for the District of Colorado. The suit was filed by a law firm against, among others, a web design company and its officers, and, just for good measure, its service provider. The suit, Oppedahl & Larson v. Advanced Concepts (Civil action No. 97-Z-1592) presents an interesting application of trademark and unfair competition law. How the suit is resolved could have interesting implications for the permissible range of "automated competition."

At issue in the case is a web page element called a "meta tag." Web pages are composed in "HyperText Markup Language" (HTML), codes which when placed in a web document are invisible to normal web surfers, but which can be read by web browsers. Put simply, HTML determines how the page is viewed or otherwise interacts with a web browser. These code elements are often referred to as "tags." A "meta tag" is a specific tag that contains "information about the information" that is contained on the particular web page.

Meta tags are often used to provide "keyword" information that better describes the purpose of the web page or the type of content the page contains. This information is used primarily by "search engines" such as Altavista, WebCrawler, HotBot and Lycos, to rate how well a particular web page matches the search criteria specified by someone using the search engine. These search engines work by sending "spiders" out to "crawl" the web and index web pages. By hopping from linked page to linked page and building an index of these "crawled" pages, a database of the contents of the Internet is created. The database consists of a list of the words that appear in the database, and a set of locations where the words exist. Lexis and Westlaw index legal information in a similar manner.

However, with the growth of the Internet, as many readers may have noticed, conducting a search often results in a large number of "hits"-- page listings that match the search terms with varying degrees of relevance. Thus, more important than whether or not a search returns a large number of hits is the ability to determine the relevance of the hits to the desired search terms. Each search engine uses different proprietary schemes to rate how closely a particular hit relates to the desired search terms. The hits are usually rated for relevance, with the highest-scoring results displayed at the top of the list of hits found by the search engine. Generally only a few hits will be shown per page of results, often requiring searchers to go through page after page to find what they are looking for, if they do not become side-tracked or frustrated first.

This is where the meta tags enter the picture. If a search term is found in a page's meta tag, the web page will usually be rated by the search engine as more relevant, and thus the page will be displayed more prominently in the search results.

By carefully choosing the keywords in the meta tags hidden from viewers in the code which makes up your web page, you can affect how a search engine will index your page, what searches will result in your page being designated as a hit, and where in the list of displayed hits your page will appear. This trick has been used in various forms for some time.

According to Oppedahl & Larson, the defendants used the meta tag trick to have their business' web page listed more prominently in searches for the plaintiff's web site. In the meta tags for their various web sites, the defendants used as keywords "oppedahl" and "larson" repeated several times in the tags (to yet further increase the weighting given to the terms by some search engines). Search for the Oppedahl & Larson web site, and right near the top of the search results are listings for the defendant's web pages.

Like any good webmaster, Carl Oppedahl did such a search for his firm's name to determine who was linking to its web page. He was surprised to see the defendants' pages high on the list, especially because a visual inspection did not indicate any reference to Oppedahl & Larson, merely an advertisement for web hosting and design services. Upon examining the HTML code, however, he noticed the reference to him and his firm web site.

Oppedahl & Larson's suit alleges that the defendants' actions constitute unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), as well as common law unfair competition. The suit also alleges that the actions violate the firm's common law trademarks and constitute a violation of the federal Trademark Dilution Act, 15 U.S.C. 1125(c).

The Oppedahl & Larson suit is not an easy fit with the law. In this instance the meta tags are really intended to fool the search engines, not necessarily web surfers. On the other hand, this case has the feel of a "bad actor"-- the defendants' actions were deliberate and intended to draw traffic to their sites that may have originally been intended for the plaintiff's site. While a web designer is not an intellectual property attorney's competitor, Carl Oppedahl has been a very vocal critic of current domain name registration and dispute resolution policy on the Internet, and he maintains an excellent and well recognized web page on the subject. People searching for his pages about domain name are those who may have an interest in web hosting services. In essence, the defendant's are using the plaintiff's notoriety in one area of Internet law to draw particular people to their advertisement, just as a television advertiser would advertise during a television show intended to appeal to a particular audience.

Section 43 of the Lanham Act protects against:

"[a]ny person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which--

(1) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . .

In the Oppedahl & Larson case, the defendants are trying to confuse a search engine into identifying their web pages as if they are affiliated with the plaintiff's site in some way. Unfortunately, this does not make the defendants' actions a clear violation of the Lanham Act.

Although the search engines may be "confused" as to such an affiliation, the people conducting the searches may not be confused. Merely discussing another business or entity does not mean I am competing unfairly with it. I have the right to discuss my competitors to my heart's content-- so long as the discussion does not amount to unfair competition, or present a likelihood of confusion between our products or services, there is no legal problem. To demonstrate this, someone has anonymously set up the "This has nothing to do with Carl Oppedahl or Oppedahl and Larson Page" (located at http://www.geocities.com/CapitolHill/Lobby/6620/index.htm). This page discusses, ad nauseam, how it has nothing to do with the aforementioned lawyers and law firm, and is likely to rate as very highly relevant in any web search for the law firm.

The second part of section 43(a) of the Lanham Act, which provides a remedy to anyone who is likely to be damaged by the use of symbols or words which "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities . . . of his or her or another person's goods or services . . ." may provide a better grounds for asserting a violation of the Lanham Act.

The defendants' sites are a commercial advertisements for the defendants' services, and the keywords misrepresent the nature, characteristics, or qualities of the defendants' services-- at least to the search engines. Again, complications arise because anyone who takes the time to look at the defendants' web pages will not find any reference to Oppedahl & Larson, even if they look at the pages under the assumption that there is some relation.

The best argument for the plaintiff to make in this case is that, because of the meta tags and the resulting listing in the search report, people will be confused as to the relation between the plaintiff's and the defendants' sites. When people view the defendants' pages, however, this confusion may be dissipated by the substance of the defendants' pages. The significance of this possibility will be decided by the court.

The dilution argument, presents an even stronger case for finding that the defendants violated dederal trademark law. The federal Trademark Dilution Act, 15 U.S.C. Section 1125(c), states that "[t]he owner of a famous mark shall be entitled, subject to the principles of equity . . . to an injunction against another person's commercial use in commerce of a mark or trade name. . . ."

For purposes of this statute, Oppedahl & Larson would likely be considered a famous mark, and the defendants would likely be deemed to be using it for a commercial purpose in commerce. Although the Trademark Dilution Act exempts uses of a mark for comparative advertising, news reporting, and the like, here the use of the name is not for such purposes. It is being used solely to increase the effectiveness of the defendants' sales efforts.

The use of meta tags for such competitive behavior is not uncommon, the Oppedahl and Larson lawsuit is just one example which has caught the eye of the media. Carl Oppedahl has been quoted by WebWeek as saying that his lawsuit is intended to make a public example of the defendants and to discourage others from similar behavior. (I hope he wins.) In the meanwhile, he is already demonstrating the value of occasionally taking the time to check on how your web site is being used or portrayed by others.


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