Many businesses use search engine optimization tools to improve the ranking of their website in search results. These tools can include incorporating meta-tags (or website keywords) in the source data for the website. Search engines (such as Google) use meta-tags to identify which search results to display when a user conducts a search.
The Full Federal Court has recently confirmed that the use of a meta-tag may constitute trade mark infringement as, although meta-tags are not actually displayed on a website, the source data of a website is visible to those who know what to look for.
The case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd  FCAFC 56 involved an apartment complex development in Cairns called “Harbour Lights”. The “Harbour Lights” name is registered as a trade mark in respect of a range of property related services including commercial real estate agency services, accommodation letting agency services and hotel accommodation services.
Apartment owners in the “Harbour Lights” complex who wish to let their apartments are free to choose Accor or another letting agent to manage this for them, or they can arrange the letting themselves. Only Accor, however, is permitted to operate its business on-site which means it can offer benefits to guests such as on-site reception and on-site luggage storage. Liv Pty Ltd trades under the name “Cairns Luxury Apartments” and offers accommodation services in the “Harbour Lights” complex in competition with Accor.
Accor claimed that Liv had infringed the trade mark registration for “Harbour Lights” by using this name in various ways including in domain names, websites and advertising material and as a meta-tag in the source data of a website. (The case also involved various other claims and cross-claims).
The claim in relation to the use of meta-tags involved the source data for Liv’s website at: cairnsluxuryapartments.com.au. The source data for this website included the following phrase:
“content: = Harbour Lights Apartments in Cairns offer luxury private waterfront apartment accommodation for holiday letting and short term rental”.
The Full Court upheld the finding of the primary judge that the use of the words “Harbour Lights Apartments” in this phrase was, effectively, use as a business name and that this consequently constituted trade mark infringement.
As part of their defence, Liv argued that there was no evidence that the use of the text in the source data was within their control, given that the source data for the website was created by an IT consultant. This argument was rejected on the basis that Liv had engaged an IT consultant to create the website, Liv operated the website, Liv had changed the content from time to time, and Liv controlled the website including the source data for the website. The primary judge inferred that the words comprising the source data must have been included to optimise the search results for Liv’s benefit, and that the IT consultant for Liv must have included the words in the source data for the website with Liv’s acquiescence. The Full Court upheld this finding.
Lesson: The use of meta-tags may constitute trade mark infringement depending on the circumstances. If text would infringe if it appeared in standard advertising material, then the text is likely to infringe if used in the source data for a website notwithstanding that this data is not actually displayed on the website itself. Business owners should consequently take care to check the content of the source data used for their websites.