Plaintiff Syncsort and defendant IRI both sell sorting software. IRI also sells conversion software that is specially made to allow users of Syncsort's software to switch to using IRI's software. IRI put the word "syncsort" into the metadata of one of its webpages, so Syncsort sued IRI, claiming that this metatag constituted trademark infringement. IRI moved for summary judgment.
The Court began its analysis by quoting a dictionary definition of "metatag" that makes a sweeping claim about the effect of metatags:
A metatag is “[a]n HTML tag that contains descriptive information about a webpage and does not appear when the webpage is displayed in a browser. A word that is in a metatag of a webpage will cause that webpage to turn up as a result of a search engine's search on that word, even if that word is not found in the webpage as viewed in a browser.” The American Heritage Science Dictionary.As the Eastern District of Wisconsin recently recognized, that definition goes too far, as search engines don't necessarily base their search results on metatags. However, the defendant here survived in spite of such a broad presumption.
Syncsort argued "that the relationship between the two products is confused when a user searches for 'syncsort' and is provided a list of search results which includes the IRI website." Unlike some other courts that have reflexively found that use of a competitor's trademark in a megatag equals skewed search results equals infringement (such as the Eleventh Circuit in its recent decision in North American Medical Corp. v. Axiom Worldwide, Inc.), the Court here found this argument unpersuasive. To reach its decision, the Court quoted J.G. Wentworth, S.S.C. L.P v. Settlement Funding LLC, 06-cv-597, 2007 WL 30115, *7-8 (E.D.Pa. Jan.4, 2007), stating:
At no point are potential consumers ‘taken by a search engine’ to defendant's website due to defendant's use of plaintiff's marks in meta tags. Rather ... a link to the defendant's website appears on the search results pages as one of the many choices for the potential consumer to investigate.... links to defendant's website always appear as independent and distinct links on the search result page.... Due to the separate and distinct nature of the links created on any of the search results pages in question, potential consumers have no opportunity to confuse defendant's services, goods, advertisements, links or websites for those of the plaintiff. Therefore, I find that initial interest protection does not apply here. Because no reasonable factfinder could find a likelihood of confusion under the set of facts alleged by the plaintiff, I will grant defendant's motion to dismiss.The Court granted summary judgment to IRI on the trademark claim, finding that its use of Syncsort's mark was a fair use.