Have you ever wondered why your competitors come up first in search engine results on the internet?
While it could be that your competitors are more tech-savvy than you are in an age of technology, there are many dishonest ways your competitors may try to gain market share from you through manipulation of marketing tools on the internet.
A common method of gaining unfair advantage of another business’ hard-earned reputation is through the use of meta-tags on the internet. For those of you (like us) who are not techno-geeks, we found out from our IT department exactly what a meta-tag is.
What is a meta-tag?
In layman’s terms, a meta-tag is the information from a website in HTML format that provides information about a webpage to search engines - such as information about who created a webpage and the information that a webpage is about, for example the goods or services for sale through the website.
Importantly, the keywords that represent a webpage's content, such as the brand name of the business that owns the website, are often included in a webpage’s meta-tags so that consumers who search for a particular brand on the internet are directed to the brand owner’s website.
Search engine optimisation
As search engine results can be affected and optimised through the use of meta-tags, dishonest businesses who wish to take unfair advantage of a competitor’s advertising material often include their competitor’s brand and business names, domain names and advertising and marketing material, for example as written information from their competitors’ websites, in their own meta-tags. The dishonest competitor’s website could then out-rank the target competitor’s ranking on the search results.
The question arises as to what can be done in such instances.
Trade Mark Law
In a case where a brand name is copied into a meta-tag -where that brand name is registered as a trade mark in terms of the Trade Marks Act - trade mark infringement proceedings are a possibility. However, the position is uncertain whether or not use of a trade mark in a meta-tag constitutes trade mark infringement. There is no decision of a South African Court on the issue of meta-tags.
A contentious issue on the use of meta-tags is whether or not a court will agree that the use of a trade mark as a meta-tag constitutes use of a registered trade mark in the course of trade as an indication of origin. To prove trade mark infringement, our Supreme Court of Appeal has held that the alleged infringing use must be proven to create a connection between the infringing goods and the trade mark proprietor, so that the origin of the goods sold by the infringer is believed to be the trade mark proprietor.
Courts in other jurisdictions have come to different conclusions on whether or not the use of a meta-tag constitutes trade mark use. In the United Kingdom, for example, the High Court found that the use of a meta-tag to divert trade constitutes trade mark use. In other jurisdictions, there have been opposite findings.
In addition, trade mark law does not necessarily adequately protect businesses from their advertising property that is not the subject of registered trade marks from being copied into a meta-tag. Often what is copied is much more than a brand name. For example, whole slogans, business names, e-mail addresses, domain names and portions of literature from a website may be copied into a meta-tag.
Where literature from a business’ website is copied in a meta-tag, copyright infringement may be an appropriate remedy. In terms of the Copyright Act, the owner of the copyright in the written contents of a business’ website may prevent others from reproducing the written contents of the website in a meta-tag.
However, copyright law often has its shortcomings. Before a business can take action in terms of the Copyright Act, it would first need to provide evidence to a Court to prove that copyright subsists in the written contents of its website and that it is the owner of that copyright. Also, the copying of small portions of a competitor’s website into a meta-tag may not qualify as a “reproduction” of the copyright owner’s original work, which is a requirement to establish liability in terms of the Copyright Act. To qualify as an unauthorised “reproduction”, the Copyright Act requires that a “substantial portion” of the literature in the original website must have been copied. This may not always be the case, especially where snippets of literature are copied into a meta-tag from a business’ website.
You may be aware of the Advertising Standards Authority (ASA), the self regulatory body of the advertising industry. The ASA deals with complaints from the public and competitors regarding advertising material that is alleged to be contrary to the ASA’s Code of Advertising Practice. The definition of “advertisement” in the Code of Advertising Practice is broad and it is arguable that the definition would extend to a meta-tag in addition to traditional forms of advertising such as television and radio advertisements, packaging and websites. The Code of Advertising Practice is a set of general principles that all advertisers must follow to ensure that all advertising is legal, decent, honest and truthful.
The ASA is not a statutory body, but its decisions are enforced through its subscribing members, which include the major media and printing houses in South Africa. To enforce compliance, the ASA may, where appropriate, issue an “ad alert” warning consumers of non-compliant advertising. In extreme cases of non-compliance, the ASA may ban an advertiser from advertising through its subscribers in any form until it complies with the ASA’s ruling.
In terms of Clause 9 of the ASA’s Code of Advertising Practice, an advertiser should not copy an existing advertisement, local or international, or any part thereof in a manner that is recognisable or clearly evokes the existing concept of the advertising.
In our opinion, the use in a meta-tag of a competitor’s slogans, business names, e-mail addresses, domain names and website contents could fall foul of Clause 9 of the ASA’s Code of Practice and warrant a complaint to the ASA.
Furthermore, in terms of Clause 8 of the ASA’s Code of Ethics, advertisements may not take advantage of the advertising goodwill relating to another person’s advertising campaign or property without the prior written permission of the owner of the advertising property.
A factor that is important in terms of clause 8.1 of the code is whether or not the advertising that has been copied is the so called “signature” of the product or service of the complainant, is consistently used, expended throughout the media and is prominent in the mind of the consumer.
Again, the use in a meta-tag of a competitor’s slogans, business names, e-mail addresses, domain names and website contents could fall foul of Clause 8.1 of the ASA’s code of ethics and warrant a complaint to the ASA.
Fight back - Take Action
As you can see, the unscrupulous practice of making use of a competitors’ advertising material in a meta-tag to improve search engine rankings is arguably contrary to the acceptable advertising standards in South Africa. In cases where such conduct occurs, there may be an available remedy in that a complaint may be lodged to the ASA.
Your advertising lawyer at Adams & Adams will be able to guide you on the appropriate action that you could take to protect your hard earned reputation. Please feel free to contact any of our team members should you require advice on this aspect.