Standard Process, Inc. v. Banks, No. 06-C-843, 2008 WL 1805374 (E.D. Wis., April 18, 2008).
In trademark meta tag litigation, it's good to see judicial interest in whether search engines actually pay attention to meta tags. This decision is one example of such interest. However, litigators should not rely on mere citation to this decision; they should make a fresh inquiry into what a particular search engine does with the meta tags at issue in their case, as the answer changes over time. It's not true that all search engines ignore them, as one might conclude after reading this decision. For example, Google offers advice to webmasters on proper use of meta tags, indicating that Google is paying attention.
Key language from the Standard Process decision:
Standard Process ... alleges that Dr. Banks is liable for trademark infringement because of “initial interest confusion.” See Promatek Indus., LTD v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir.2002). “Initial interest confusion” occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated. Id. For example, in Promatek, the plaintiff used a direct competitor's trademark in its metatags. A metatag is HTML (Hyper Text Markup Language) code that describes the content of a website, and search engines used to use them to identifying the content of a website. The Seventh Circuit found that the use of the competitor's trademark in the plaintiff's metatags diverted customers to the plaintiff's website and likely caused customer confusion. Id.
... Dr. Banks used Standard Process trademarks in the metatags of his website. However, today “modern search engines make little if any use of metatags.” 4 J. Thomas McCarthy on Trademarks and Unfair Competition § 25:69 (4th ed.2003). As more and more webmasters “manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.” Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it. See 4 McCarthy on Trademarks § 25:69.
In any event, even if search engines still made significant use of metatags, this case is different than Promatek. Consumers who enter “Standard Process” in a search engine may be diverted to Dr. Banks's website where, unlike the plaintiff's site in Promatek, it actually provides an opportunity to purchase the trademark holder's goods. Dr. Banks is not a direct competitor to Standard Process. Consumers will still be able to purchase unaltered SP Products on his site, so the likelihood of consumer confusion is not present here like it was in Promatek.