The Legal Liability of Keyword Metatags?

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Nobody really debates too much about keyword metatags anymore. Google and MSN ignore them, Yahoo and Ask don’t, but go stuffing them or you risk search engine penalties. But rarely does anybody bring up the legal liabilities of what’s in your keyword tags.

But apparently, it does come up in court sometimes, after webmasters drop competitor trademarks into the tags, and the competitor cries infringement.

Now it’s still quite up in the air whether even bidding on a competitor trademark for use in search advertising is infringement, though many cases recently have ruled that it is not. Google still allows that, but MSN and Yahoo do not. American Airlines is taking Google to court over it, which may set a big precedent.

But in the metatags? Where hardly anybody (spider) is looking? Well, apparently, lawyers dig into those tags and cite them as infringements, so tread cautiously.

Playboy even sued one its own Playmate of the Year once for using the terms "Playboy" and "Playmate" in her tags. The court ruled it fair use, as that was part of her official title.

The hardest part of an infringement case to make (at least, to convince me of, the not-a-lawyer) is that keyword metatags would be considered "use in commerce" or cause likelihood for confusion. But some would and have disagreed. 

Technology & Marketing Law Blog’s Eric Goldman thinks those lawyers are a bit on the irresponsible side of the ethics fence, though:

"I think it’s irresponsible (in an ethical sense, if not from an RPC sense) for a plaintiff’s lawyer to go into court claiming that keyword metatags support trademark infringement without informing the judge of the likely technological irrelevance of the keyword metatag."

Irrelevance, as in, most of Internet’s not going to see them anyway. But, as Goldman points out, a lot of judges may not understand that.

The Legal Liability of Keyword Metatags?
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