eye NET

Tag -- who's it?

Website meta tag cheats spark trademark food fights

BY INGRID HEIN

When eyenet talked to U.K. hacker artist Heath Bunting last year, he talked about how he had subverted the websites of Nike and Adidas. Bunting said he had designed a site that fooled search engines into putting his site at the top of the list for Internet users who were searching for the real Nike and Adidas sites.

I was skeptical at first, but it worked. In fact, it worked so well he was asked to stop. And now it looks as if Bunting's idea is catching on with companies that want to ride on the shoulders of others. As a result, legal disputes on the use of meta tags are hitting the courts.

Everybody who has a web page wants visitors. In order to get visitors, website promoters use every trick in the book to make sure that people can find them. There are a number of ways to do this: you can spend a lot of money on advertising in magazines and newspapers, or on digital advertising.

But the cheapest way to scream "I'm here!" is to list yourself on a search engine. The trouble is, there's no guarantee that your web page will be the first to appear when a web user searches in your area. There are too many ways for web developers to subvert web users away from relevant pages.

Go to a search engine and type in words like "woman" and "law", and you might come up with a couple dozen sex sites before finding any pages that actually have anything to do with women and the law.

This is partly due to the use of meta tags, a part of the Hypertext Markup Language that makes web pages look the way they do. Meta tags are supposed to provide a description of the web page. They are invisible to the Internet user looking at the page, but are important for search engine indexing. Most search engines, like AltaVista, Hotbot and Infoseek, send out little applications called "bots" (short for robot) to look for meta tags and list the pages with the most relevant tags first.

It's the web designer -- not the indexer -- who decides what the meta tags will be, so it's easy to put in key words that are not necessarily relevant to the site. For example, if I own a company called ABC Inc. and my competitor is called XYZ Inc., it becomes tempting to include the keywords XYZ Inc. in my keyword meta tag. That way, my web page will come up when a web user searches for XYZ Inc.

Because of tricks like this, the methods search engines use for listings may soon become a key issue in trademark law, as companies and individuals become more and more frustrated by the chaotic nature of the web's indexing process. As the web becomes less of a mystery and more of a corporate battleground, tricks like these are being attacked as trademark infringement, and it's likely to become a bigger issue as companies get more vigilant about their web pages.

Nobody is "in charge" of indexing the web. There are no librarians or other official authorities for information online, so it's easy to get away with digital trickery.

At least six cases have reached U.S. courts over this type of trademark infringement -- Playboy magazine is currently suing three different parties for using its name in a meta tag. Two of the other cases ended in a judgement that required the offending party to remove the keywords, even when they didn't appear anywhere in the text visible to the web user. It's opening up questions as to whether trademark infringement is possible whether it's invisible to the web user or not.

Lawyer Jehangir Choksi, who specializes in patent and trademark law at Toronto law firm Bereskin and Parr, says that he hasn't seen any cases of this kind in Canada yet, but expects his firm may see one within the next year or so. He suspects that Canadian companies might not be able to prove infringement as easily as corporations in the U.S. can.

"It might not be seen as a trademark infringement in Canada," Choksi says. "The trademark has to be seen by someone in a normal course of trade." For someone else to infringe trademark, they have to use the trademark in connection with goods.

"In the States, unfair competition is more developed. There are more aspects to it. In the States you have something called dilution; you can dilute a trademark if it hurts the trademark."

Meta tag disputes show how easy it's become to shuffle bits and bytes for profit. But somewhere along the way, the information age is increasingly becoming the dis-information age.