The Federal Court of Appeal (FCA) dismissed an appeal from a trial decision finding that there was no copyright in Appellant's metatags and therefore, no copyright infringement. The trial judge also found that the use of the Appellant's trademarks in the Defendant's metatags did not constitute trademark infringement, passing off or depreciation of goodwill (decision here; our summary here).
The FCA held that the issues raised by the Appellant were based in large part on findings of fact and that the trial judge had not made any palpable and overriding error in making these findings. With respect to trademark infringement, while the trial judge's finding that there was no use of the Appellant's trademarks was upheld, the FCA noted that "in some situations, inserting a registered trademark (or a trademark that is confusing with a registered trademark) in a metatag may constitute advertising of services that would give rise to a claim for infringement […]"
Dawson J.A. issued a set of concurring reasons, in which she concluded that "the decision of the Federal Court must be read in light of the facts before the Court. The extent to which a trademark may be used in metatags without infringing the trademark is, of necessity, fact specific."