Metatag Use of Trademarks Constitutes Use in Commerce, Court Rules

Metatags are website programming elements that average Internet users never see. However, they influence the viewing habits of millions. A metatag is written into the header of a webpage’s code and gives directions to search engines about what content or keywords may be found on the webpage (although the tag itself never appears on the page.) Unscrupulous web programmers and advertisers often try to “stack the deck” by adding as many keywords as possible in the metatag programming, hoping to end up in first or second place on a search results page.

This practice is even riskier after a Eleventh Circuit Court of Appeals judge ruled in the plaintiff’s favor in North American Medical v. Axiom Worldwide, Inc. Attorneys for North American argued that by placing North American’s trademarks in the metatags of Axiom’s webpages, Axiom was committing trademark infringement. The Eleventh Circuit agreed concluding that placing trademarks in the metatags section of the webpage did constitute a use in commerce. The Court also ruled that by using its competitor’s trademarks in the metatags, Axiom had created a likelihood of confusion. The lessons of the case are clear: companies and individuals should be very careful how they create ad copy in all parts of their website, metatag or not.

Facebook Says Goodbye to ‘Scrabulous’

A wildly popular Facebook application is no longer available, much to the disappointment of millions of users. Scrabulous, which functioned like a running Scrabble game that users could play over hours, days, and even weeks, was suspended by Facebook after Hasbro, the owner of Scrabble, brought suit against the website and the creators of the application. (The creators wasted no time in modifying their version of Scrabulous and releasing a new game application called ‘Wordscraper’, which looks and feels very much like Scrabble but has subtly different rules and can be customized by its users.)

Apart from infringing on the Scrabble trademark, the crux of the controversy is the question of what material is protectable by copyright law. Title 17 of the U.S. Copyright Act states that an idea cannot be protected by copyright law, but the expression of the idea can be. The concept of Scrabble (or Scrabulous), a game where players use lettered tiles to spell words and earn points, is simply an idea and not protectable. However, the expression of that idea through the Scrabble trademark, the instructions of the game, and the designs of the board and box, is protectable. Hasbro recently released an “official” version of the Scrabble game for Facebook users. Its success has been limited so far as users complain that it’s not as good as Scrabulous.

Bratz Dolls Designs Subject to Work for Hire Clause

The New York Times recently reported that Barbie doll maker Mattel scored a huge victory against MGA Entertainment, maker of the highly popular Bratz doll line. A federal judge ruled that Bratz designer Carter Bryant, who had worked at Mattel prior to his success with the Bratz dolls, had committed copyright infringement by not respecting the Work for Hire clause in his Mattel contract. Copyrights of works created under such a clause belong to the company commissioning the work, not the designer. The judge also found that MGA’s chief executive had colluded with Carter Bryant to convert Mattel property for their own purposes.

Damages in the trial have not yet been awarded. Mattel has already seen an upswing in its stock price at the news.