The article “Keywords, Meta Tags and Trademarks” is one we all as creative professionals should take to heart. Many creative professionals add meta tags in websites unbeknownst to them that they are possibly committing trademark infringement. Attorney Ivan Hoffman’s article poses to shed some light into trademark infringement in regards to web development.

The article tells us about words and phrases being used as meta tag keywords within a website’s source code. Often times a website developer will insert keywords relative to the subject of the website in hopes of increasing search engine ranking. The cases Mr. Hoffman cites reference to are claiming infringement of trademarks in two different manners. The Plaintiffs claims are that by the Defendants website source including trademarks within their meta tags that they are in short driving traffic away from the Plaintiffs websites and creating confusion for the website visitors. Confusion of the origin of the trademark is the core foundation of trademark infringement. As Halbert, Ingulli, Ferrara, & Schiano state, trademark infringement occurs “when a party uses a trademark that causes a ‘likelihood of confusion’ between goods or the relationship between the parties that make the goods.” (Halbert, Ingulli, Ferrara, & Schiano, 2008, p. 144)

Out of the cases that Mr. Hoffman cites that I found most intriguing is when Playboy sued one of their former Playmates. Playboy sued Terri Welles on the grounds that by her including the terms “Playboy” and “Playmate” that she in turn was infringing on the trademark of the Playboy enterprise. I could understand the charges if Ms. Welles was in no way affiliated with Playboy, however, the fact of the matter is that Ms. Welles was a “Playboy Playmate of the Year” for 1981. Ms. Welles website also provided a disclaimer that she is currently not associated with the Playboy enterprise and it was evident, according to research by her attorney, that the mention of the trademarks within her source were justified by articles and interviews posted on her website regarding her time spent at the Playboy Mansion. The court’s ruling was in favor of Ms. Welles. “The use of the term Playboy is not an infringement because it references not only her identity as a “Playboy Playmate of the Year 1981,” but it may also reference the legitimate editorial uses of the term Playboy contained in the text of defendant’s website. Plaintiff conceded, both in its papers and in oral argument, that defendant may properly use the term Playboy in an editorial fashion (i.e. in reference to the Playboy Mansion). ” (Hoffman, 2006)

Mr. Hoffman’s suggestion to aid in creative professionals not being held liable for trademark infringement is simple: make your clients responsible for creating keywords for inclusion in meta tags. He professes what he includes in his web design-client agreements on behalf of his clients are provisions “which place the sole responsibility for the designation of keywords and meta tags squarely on the client. This means that even though the designer does the actual placement of such keywords and meta tags, the client is deemed to have created those and in the event that there are any such trademark or other claims, the client is liable to hold the designer harmless from any such claims.” (Hoffman, 2006) This is a provision that all creative professionals should include in their contracts to avoid potential trademark infringement charges to arise over meta tags. Remember that you are a designer for hire and not an attorney. Your job is to use what knowledge you have to create a mark that is distinctive… However, you do not have a responsibility to ensure that the mark is not breaking the law.

Citations

Halbert, T., Ingulli, E., Ferrara, G., & Schiano, W. (2008). Media Law and Ethics: IMD241. Mason, OH: Thomson.

Hoffman, Ivan (2006). Keywords, Meta Tags and Trademarks. Retrieved from the Website if Ivan Hoffman, B.A., J.D. on July 25, 2006 at http://www.ivanhoffman.com/keywords.html