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DOMAINNAMES 453pages are coded using a type of programming language
called hypertext markup language, or HTML. The codes
that are embedded in HTML documents, called tags, tell
the browser how to display the information contained on
the page, such as when to display words in bold, when to
change fonts or font sizes, how to align tables, or where
to place images. Web page designers can also include
meta tags, which are special tags that contain information
about the contents of the Web page. Meta tags are used
by search engines to find and rank pages so that more
relevant search findings are displayed before less relevant
ones.
In one of the first lawsuits over meta tags,Oppedahl
& Larson v. Advanced Concepts, et al.(1997), a Colorado
law firm discovered that the defendants had put the law
partners’ names, “oppedahl” and “larson,” in meta tags
on several Web pages. This was presumably done in hopes
that searches for the respected law firm’s name would gain
more attention for the defendants’ Web pages. Suing un-
der both the Lanham Act and the Federal Trademark Di-
lution Act, as well as state and common-law unfair trade
practice actions, the law firm won a permanent injunction
against any further use of its names in meta tags on the
defendants’ Web sites. Since that case, a number of other
disputes have tested the extent to which trademarks may
be used in meta tags and have largely resulted in prohi-
bitions against uses by entities seeking to enhance site
traffic by using the marks of competitors.
One of the issues that has arisen in meta tag disputes
is the concept of “initial interest confusion.” Initial in-
terest confusion occurs when the use of another’s trade-
mark is done so in a manner reasonably calculated to
capture initial consumer attention, even though no ac-
tual sale is finally completed as a result of the confusion.
The case ofBrookfield Communications, Inc., v. West Coast
Entertainment Corp.(1999) illustrates the issue. Brook-
field operated a Web site, MovieBuff.com, containing a
movie database. West Coast, a video retailer, used the term
“moviebuff” in meta tags on its Web site. A court held that
West Coast’s use of term in meta tags led to “initial in-
terest confusion,” in which search engine users looking
for MovieBuff.com’s site might visit West Coast’s site and
stop looking for MovieBuff.com, even though there might
never be any confusion over sponsorship of the two sites.
Not all cases in which meta tags were at issue have
resulted in a ban on their use. For example, in the case
ofPlayboy Enterprises, Inc. v. Terri Welles(2002), a model
who had posed as a Playboy Playmate of the Month was
permitted to use “Playboy” and “Playmate” as meta tags
for her Web site.Deep Linking
Fundamental to the functioning of Web pages on the In-
ternet is the concept of a link. A link, short for hyperlink,
is a tag coded within a Web page that turns a piece of text
(or in some cases an image) into a pointer to another doc-
ument or page. Clicking on that link will typically cause
the browser to follow the link and open the new page.
Although a simple link to the home page of a Web site
will not typically run into trademark issues, some sites
choose to create links to pages many levels down withina site. For example, instead of linking to the home page
of a manufacturer, a Web site designer might choose to
create a link that goes directly to a page displaying one of
the manufacturer’s products. This practice is calleddeep
linking.
Some site owners object to deep linking because it al-
lows visitors to quickly bypass other contents of a Web
site, including advertisements, which they would nor-
mally see if they had to navigate step-by-step through the
contents of a site. In several court cases, plaintiffs have
charged that deep linking deprives them of the full bene-
fits of having visitors explore their site and have argued a
variety of copyright, trademarks, and unfair competition
claims. Proponents of deep linking counter that deep links
are no different from footnotes or bibliographies, permit-
ting readers to jump quickly to precise information. There
are few clear court decisions on the trademark implica-
tions of deep linking; however many of the suits have fo-
cused on evidence of a defendant’s bad faith, such as any
appearance that the deep linking is intended to take un-
fair advantage of the other site’s content, which will cut
strongly in favor of the plaintiff.
In a related issue, there have been numerous disputes
over the practice of “framing” Internet content. Framing
is a technique in which content from one site is displayed
within a “frame” appearing on another unrelated site. The
use of framing often makes it appear that the content is
owned or otherwise presented by an entity other than its
actual owner or authorized user. Most disputes regard-
ing framing have centered on copyright implications of
unauthorized framing of content; however, trademark is-
sues also arise when there might be confusion as to the
source of the content or its relationship to advertisements
and other affiliations that might be suggested by the way
in which the framed material appears.DOMAIN NAMES
With the explosive growth of the Internet, both in its im-
portance to global commerce and in the effect it has had
on all aspects of our society, the importance of the do-
main names used on the Internet cannot be understated.
The academic and noncommercial roots of the Internet
caused many of its key functions, such as the domain
name system, to be designed without some important
safeguards. For example, domain names could then—and
in many cases can still—be registered by anyone willing
to pay the registration fee. In the early days of the Inter-
net, this fact caused something of a “land grab” mental-
ity in which speculators rushed to purchase the rights to
domain names that were expected to become valuable.
Indeed, the domain name WallStreet.com, registered for
under $100, was reportedly sold for more than $1 million
(Bicknell, 1999).
Unfortunately however, some speculators also rushed
in and purchased domain names that were identical (or
in some cases merely similar) to valuable brand names.
These so-called cybersquatters sought to gain financially
by occupying the “virtual” real estate of someone else’s
trademark translated into a domain name. Because a do-
main name has become such an important part of a com-
pany’s marketing identity, trademark owners have been