Comparative Advertising on the Internet: Defining the Boundaries of Trademark Fair Use for Internet Metatags and Trigger Ads

With well over a billion websites in existence, finding the desired material on the Internet can be a challenge. Many individuals, businesses, and organizations are faced with the similar challenge of ensuring that their websites can be found by interested parties. Because websites are often the primary economic livelihood for individuals and businesses, the ease with which a website can be found is critical. Website designers, businesses, and advertisers have, therefore, gone to great lengths to ensure that their websites can be easily found by Internet search engines. Some website designers and businesses, however, have run afoul of intellectual property laws in their efforts to ensure that consumers can find their websites.
This article will examine the implications of the use of a competitor’s trademark as a website metatag or trigger advertisement. Part II will discuss the technological background of metatags and will examine the various contexts in which metatags and trigger ads have been used. Part III will discuss the relationship between trademark law and metatags and will examine the ways in which courts have treated metatag and trigger ad cases, particularly in the application of the fair use defense. Part IV will seek to draw an articulable legal distinction between which uses of a competitor’s trademark as a metatag or trigger ad should be infringement and which uses of a competitor’s trademark as a metatag or trigger ad should be fair use. This article will attempt to reconcile the inconsistency among various courts and will argue that the use of a competitor’s trademark as a metatag or trigger ad should not be fair use where the defendant’s intent is to usurp the plaintiff’s goodwill or to deceive consumers as to source or sponsorship.