In Red Label Vacations Inc. v. 411 Travel Buys Limited2015 FCA 290, the Federal Court of Appeal dismissed an appeal from the decision of Manson J., who dismissed the claims of Red Label Vacations Inc. (“Red Label”) for copyright infringement, trademark infringement, passing off, and depreciation of goodwill. At issue was whether copying of meta tags could result in trade-mark infringement or passing off. Meta tags are snippets of text that are intended to describe a web page’s content but do not appear as visible content on the web page.

Both Red Label and 411 Travel Buys Limited (“411 Travel Buys”) were in the business of offering travel services. Red Label discovered that metatags from Red Label’s website were copied into 411 Travel Buys’ website, although none of the copied metatags appeared on the visible pages of the 411 Travel Buys website. The owner of Red Label demanded that 411 Travel Buys stop using Red Label’s metatags. On the same day, the website for 411 Travel Buys was taken down entirely and reinstated only when all of the potentially infringing content was removed. No purchases could be made on the website during the brief time that it was operative. Justice Manson of the Federal Court dismissed Red Label’s claims for trademark infringement, passing off, and copyright infringement. 411 Travel Buys appealed. 

Based on the above, the Federal Court of Appeal was not persuaded that Justice Manson made an appealable error in concluding that 411 Travel Buys did not “use” any of Red Label’s trademarks through use of the meta tags.