Web site designers use a computer language known as Hypertext Markup Language ("HTML") to create Web sites. Metatags are keywords contained in a section of the HTML code. Typically, Web site designers enter a list of general and specific keywords that describe the site at the time of its creation. The search engines link the keywords in the metatag with the Web site and create an index. Search engines scan this index to match the terms entered by the user to provide a list of hits. Some Web browsers such as Internet Explorer allow one to view a site's metatag through "View" and "Source" choices from the pull-down menu.

Metatags are extremely important for businesses with an online presence. Today there are approximately 800 million Web sites and the largest search engines, such as Yahoo or A1tavista, index approximately 141 million documents. To differentiate your business from the multitude of others, and enable potential customers to reach your Web site, you should create a broad and comprehensive index of keywords using metatags. If your online Business does not have metatags in its Web site, you should contact your Web site designer and choose some. Businesses should be careful, however, to avoid using another company's trademark in their metatag. One of the most significant legal issues surrounding the use of metatags is trademark infringement.

Metatag trademark infringement occurs when one business puts a competitor's trademark in its metatag to lure customers who are searching for that site.

The Lanham Act (the "Act") is the federal law that regulates trademark infringement. Under the Act, trademark infringement occurs through the unauthorized use of another's mark in a manner that creates the likelihood of consumer confusion. The Act allows a successful plaintiff to recover damages, including the defendant's profits, and, in some cases, attorney's fees, and injunctive relief. Metatag trademark infringement occurs when one business puts a competitor's trademark in its metatag to lure customers who are searching for that site. Several courts have held that the use of a competitor's trademark as a metatag is trademark infringement and have issued injunctions to prevent this practice.

This pitfall is illustrated by Niton v. Radiation Monitoring Services, 27 F. Supp. 2d 102 (0. Mass. 1998), where the defendant "RMO" placed the plaintiff's mark, "The Home Page of the Niton Corporation...", in the RMO site's metatag. When one searched for Niton, RMO's site appeared as several of the hits. The court held that RMO used its metatag in a way likely to lead consumers to believe that RMO made the same products as Niton and was affiliated with Niton. Accordingly, the court granted Niton's request for a preliminary injunction against RMO's practice.

Similarly, In Brookfield v. West Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999), the court held the defendant's use of the Brookfield's trademark amounted to infringement under the Lanham Act. In Brookfield, the defendant used the plaintiff's federally registered trademark "MovieBuff" in its metatag. When potential customers of Brookfield searched for MovieBuff, they were presented with West Coast's website. The court reasoned that the diverted customers would choose West Coast's product instead and ordered the lower court to grant a preliminary injunction.