Hidden Code Sparks High-Profile Lawsuit

David J Loundy

Chicago Daily Law Bulletin, Volume 143, No. 178, September 11, 1997

An interesting lawsuit was filed recently in federal court in Denver. The law firm of Oppedahl & Larson is suing a Web design company and its officers, and for good measure, its service provider. The suit, Oppedahl & Larson v. Advanced Concepts, Civil Action No. 97-Z-1592, presents an interesting application of trademark and unfair competition law. How the suit is resolved could have interesting implications for the permissible range of "automated competition."

At issue in the case is a Web page element called a meta tag. Web pages are composed in Hyper Text Markup Language, or HTML, codes that when placed in a document are invisible to normal Web surfers but that can be read by Web browsers. Put simply, HTML determines how the page is viewed or otherwise interacts with a Web browser.  These code elements are called tags; a meta tag is one that contains information about the information on the particular Web page.

Meta tags are often used to provide keywords that better describe the purpose of the Web page or its content. This information is used primarily by search engines such as AltaVista, WebCrawler, HotBot and Lycos to rate how well a particular page matches the criteria someone specifies for a search. The search engines work by sending "spiders" out to "crawl" the Web and index pages. By hopping from linked page to linked page and building an index of these "crawled" pages, the spiders help create a database of the Internet's contents. The database consists of a list of the words that appear on the various pages and a set of locations for the words. Lexis and Westlaw index legal information in a similar manner.

However, with the growth of the Internet, as many readers may have noticed, conducting a search often results in a large number of hits -- page listings that match the search terms with varying degrees of relevance. Thus, more important than whether or not a search returns a large number of hits is the ability to determine the relevance of the hits to the specified search terms. Each search engine uses different proprietary schemes to rate how closely a particular hit relates to the search terms. The hits are usually rated for relevance, with the highest-scoring results displayed at the top of the list of hits found by the search engine. Generally only a few hits will be shown per page of results, often requiring searchers to go through page after page to find what they are looking for -- if they aren't sidetracked or frustrated first.

This is where the meta tags enter the picture. If a search term is found in a page's meta tag, the web page will usually be rated by the search engine as more relevant, and thus, the page will be listed higher in the search results.

By carefully choosing the keywords in the meta tags, hidden from viewers in the code that makes up your web page, you can affect how a search engine will index your page, what searches will designate your page as a hit, and where in the list of displayed hits your page will appear. This trick has been used in various forms for some time.

According to Oppedahl & Larson, the defendants used the meta-tag trick to have their business listed high in searches for the plaintiff's Web site. In the meta tags for their various Web sites, the defendants used the keywords "oppedahl" and "larson" and repeated them several times in the tags (to further increase the weight given to the terms by some search engines). Search for the Oppedahl & Larson Web site, and right near the top of the results are listings for the defendant's Web pages.

Like any good webmaster, Carl Oppedahl did such a search for his law firm's name to determine who was linking to its Web page. He was surprised to see the defendants' pages high on the list, especially because a visual inspection did not indicate any reference to Oppedahl & Larson, merely an advertisement for Web hosting and design services.  Upon examining the HTML code, however, he noticed the reference to him and his firm Web site.

Oppedahl & Larson's suit alleges that the defendants' actions constitute unfair competition in violation of section 43(a) of the Lanham Act, 15 U.S.C. [sec]1125(a), as well as unfair competition under common law. The suit also alleges that the actions violate the firm's common-law trademarks and constitute a violation of the federal Trademark Dilution Act, 15 U.S.C. [sec]1125(c).

The Oppedahl & Larson suit is not an easy fit with the law. The meta tags in this instance are really intended to fool the search engines, not necessarily Web surfers. On the other hand, this case has the feel of a "bad actor" -- the defendants' actions were deliberate and intended to draw traffic to their sites that may have been originally intended for the plaintiff's site. While a Web designer is not an intellectual property attorney's competitor, Carl Oppedahl has been a very vocal critic of current domain-name registration and dispute- resolution policy on the Internet, and he maintains an excellent and well- recognized Web page on the subject. People searching for his pages about domain names are those who may have an interest in Web hosting services. In essence, the defendants are using the plaintiff's renown in one area of Internet law to draw particular people to their advertisement, just as a television advertiser would buy spots during a show intended to appeal to a particular audience.

Section 43 of the Lanham Act protects against "[a]ny person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which:

     "(1) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such       person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. ..."

In the Oppedahl & Larson case, the defendants are trying to confuse search engines into identifying the defendants' Web pages as if they are affiliated with the plaintiff's site in some way. Unfortunately for Oppedahl, this does not make the defendants' actions a clear violation of the Lanham Act.

Although the search engines may be confused about such an affiliation, the people conducting the searches may not be. Merely discussing another business or entity does not mean I am competing unfairly with it. I have the right to talk about my competitors to my heart's content -- so long as the discussion does not amount to unfair competition or present a likelihood of confusion between our products or services, there is no legal problem.

To demonstrate this concept, someone has anonymously set up the "This Has Nothing to Do with Carl Oppedahl or Oppedahl & Larson Page" (located at http:// www.geocities.com/ CapitolHill/Lobby/6620/index.htm). This page discusses ad nauseam how it has no connection with the aforementioned lawyers and law firm, and is likely to rate as very highly relevant in any Web search for the law firm.

The second part of section 43(a) of the Lanham Act provides a remedy to anyone who is likely to be damaged by the use of symbols or words that "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities ... of his or her or another person's goods or services. ..." And this provision may provide a better grounds for asserting a violation of the Lanham Act.

The defendants' sites are commercial advertisements for the defendants' services, and the keywords misrepresent the nature, characteristics or qualities of the defendants' services -- at least to the search engines. Again, complications arise because anyone who takes the time to look at the defendants' Web pages will not find any reference to Oppedahl & Larson, even if they look at the pages under the assumption that there is some relation.

The best argument for the plaintiff to make in this case is that, because of the meta tags and the resulting listing in a search report, people will be confused about the relation between the plaintiff's and the defendants' sites. When people view the defendants' pages, however, this confusion may be dissipated by the substance of the defendants' pages. The significance of this possibility will be decided by the court.

The dilution argument presents an even stronger case for finding that the defendants violated federal trademark law.  The Trademark Dilution Act, 15 U.S.C. [sec]1125(c), states that, "The owner of a famous mark shall be entitled, subject to the principles of equity ... to an injunction against another person's commercial use in commerce of a mark or trade name. ..."

For purposes of this statute, Oppedahl & Larson would likely be considered a famous mark, and the defendants would likely be deemed to be using it for a commercial purpose. Although the Trademark Dilution Act exempts uses of a mark for comparative advertising, news reporting and the like, the use of the name here is not for such purposes. It is being used solely to increase the effectiveness of the defendants' sales efforts.

The use of meta tags for such competitive behavior is not uncommon, and Oppedahl & Larson's lawsuit is just one example that has drawn the media's attention. Carl Oppedahl has been quoted by WebWeek as saying that his lawsuit is intended to make a public example of the defendants and to discourage others from similar behavior. (I hope he wins.) Meanwhile, he is already demonstrating the value of occasionally taking the time to check on how your Web site is being used or portrayed by others.

Technology Law By David J. Loundy Loundy is an attorney at Davis, Mannix & McGrath in Chicago. He also is chair of the CBA Computer Law Committee and a member of the ISBA Intellectual Property Section, for which he chairs the Internet law subcommittee. He can be reached at David@Loundy.com, and his columns are archived at http://www.Loundy.com/ on the Internet.