Have you ever heard of a “meta tag”? You may not have if you are not a professional website developer. A meta tag is small piece of code in a website that can enable a search engine or web browser to identify a particular site. You cannot see a meta tag simply by looking at a website online. However, sometimes the meta tag can be used by competing businesses to try to gain an advantage over the other resulting in litigation. This happened in Red Label Vacations Inc. v. 411 Travel Buys Limited, 2015 FC 19.
The plaintiff, Red Label Vacations Inc. (“Red Label”) is a travel business that offers online travel deals through its website redtag.ca. Red Label had registered various trademarks related to its business.
The defendant, 411 Travel Buys Limited (“411 Travel”) is a direct competitor to Red Label and also offers online travel deals through its website. However, to gain a competitive edge, it also used meta tags that consisted of Red Label’s registered trademarks.
When 411 Travel refused to remove those meta tags, Red Label brought an action and sued 411 Travel alleging copyright infringement, trademark infringement, and the torts of passing off and depreciation of goodwill.
What did the court say? The court decided that there was no copyright infringement because there was little evidence of any sufficient degree of skill or judgment in creating these meta tags as required by case law or for the originality required in compiling data or other compilations.
Red Label also alleged trademark infringement under the Trademarks Act. The court held that an infringement of another’s trademark must have been “used” by the defendant in connection with wares or services. The term “use” is defined by the Trademarks Act. The court decided that there was no “use” and therefore no infringement.
This case is being appealed. However, as it sits now, the use of meta tags will not attract liability for copyright or trademark infringement. This case addressed important issues that in the past have received very little judicial consideration. It will be interesting to see if the American position – where liability may exist if a business uses a trademark of a competitor to gain an advantage and attract customers – will gain any ground here in Canada.