Legal Issues Concerning Trademark Infringement In Meta-tag Usage

As a symbolization of a commodity, a trademark bridges the proprietor and the consumer, maintaining and strengthening the proprietor's competitive edge. In virtue of its powerful information-searching and interconnecting ability, Internet on the one hand provides opportunity for promotion of trademarks and on the other hand, gives rise to problems in the protection of trademark under the traditional legal system. Examples of such problems include new practices that lead to trademark infringement. This thesis focuses on one particular practice of trademark infringement, i.e. through the abuse of website meta-tags.Meta-tags are descriptive words embedded in HTML code that website owners use to describe the features and contents of the website. Invisible on the webpage, meta-tags will only be recognized by Internet search engines. The website description expressed through meta-tag determines the degree of relevance and the ranking of websites among the search results. In order to improve the ranking in search results, some website owners purposefully add into the meta-tags others'trademark terms irrelevant to the website. One common abusing instance is when a website owner embeds the trademark of its competitor or a famous trademark into the website's meta-tag on purpose. In such a case, when a consumer types in a trademarked keyword into the search engine, he or she can potentially end up clicking on the link which appears on the top of the search results and is therefore diverted to a competitor's product. This is likely to cause trademark infringement disputes. Such disputes have already been documented in many countries, drawing the attention of the legal research community. But determining whether embedding others'trademark in the meta-tag is trademark infringement is no easy task. The traditional legal system governing the use of trademarks faces huge challenge in the Internet era. In answer of these meta-tag-related trademark infringement disputes, some countries have come up with advanced theories and applied them in their legal practice. The disputes and theories attempting to address them constitute a key component of this thesis.Similar disputes have not yet been documented in China, but the trademark infringement through search engine and key words technology did occur. The vacuum in legal practice neither means the absence of disputes nor the lack of need for research and protection. Through research on this new kind of Internet infringement dispute, the author finds the deficiency and insufficiency in the legal system regulating trademark infringement, anti-dilution protection of well-known trademark and the limitation of trademark right. This thesis will make reference from the advanced theories and practice of other countries in dealing with meta-tag trademark infringement and then summarize the experience as well as insufficiency in the trademark legislation and practice of China so as to improve on the legal system of trademark protection.This 35000–word thesis consists of 4 chapters.Chapter 1 first gives a brief introduction on the concept and nature of Internet search engine and meta-tag, and proceeds to cover the relevant meta-tag disputes. In order to prepare for detailed analysis on the legal nature of meta-tag infringement in following chapters, Chapter 1 also briefly covers the trademark law system in the Internet era.Chapter 2 deals with the theory and practice of the meta-tag infringement and is divided into two parts: trademark infringement and well-known trademark dilution in accordance with the trademark law system. Through case studies, corresponding theories are introduced, including the"initial interest confusion"theory developed in the legal practice of U.S. and the application of anti-dilution theory of well-known trademarks in the meta-tag disputes. In addition, the anti-competitive practices clauses, as the bottom-line clauses of trademark infringement, are also briefly introduced.Chapter 3 expatiates on the defense of meta-tag trademark infringement, namely, non-commercial use of trademark and trademark fair use. Thereinto, non-commercial use involves parody, news and commentary, dictionary and reference book use. And whether the use constitutes trademark fair use is determined by three factors--the confusion of consumer, the subject intent of the defendant, and the way other's trademark is used. This chapter also introduces corresponding theories through cases studies.Chapter 4 covers the legislative status and perfection of meta-tag trademark issues in China. Through research on different countries'legal system, the author finds that relevant trademark legal regulations in China lack positivism and operability. There are also legislation vacuums ranging from the lack of anti-dilution regulation of well-known trademarks to the lack of specified regulation setting the boundaries of trademark rights. Based on the author's observation of such deficiencies, legislative suggestions are given at the conclusion of the thesis.