Earlier this year the German Federal High Court held trademarks metatagging unlawful. The “impuls” holding (in German) available for download here. According to the full decision published recently, metatagging in the hidden source code of the web page is “trademark use” giving rise to infringement liability.
The Court further held that such use created likelihood of confusion (under a theory similar to the U.S. “initial interest confusion” doctrine), as the tag used by defendant was identical to the mark of plaintiff, both offering health insurance services. In other words, it did not matter that users could immediately be de-confused by clicking on defendant’s link and realizing that this is not where they had wanted to go.
The argumentation offered about the trademark use of defendant is rather flat. The Court stated laconically that influencing the search process of search engines sufficed. This seems to be establishing an important (and broad) restriction on use of marks that might impact a variety of Internet applications like banners, pop-ups, keywording and other controversial advertising practices, where defendant’s use of the mark is “perceived” by machines, but not by consumers.
Happy tagging everyone!