Recent Case on the use of Metatags – Red Label Vacations v. 411 Travel Buys

Red Label Vacations v. 411 Travel Buys (2015 FC 19) is a recent decision of the Federal Court of Canada that clarifies trademark law as it relates to the use of metatags on websites.  A metatag is a word or small phrase that is embedded in a website but is not visible on the actual webpage(s).  When a person types a phrase into a search engine, such as Google, the search engine uses an algorithm to search the Internet for web pages containing the particular words. Metatags are merely one of the factors that affect search results.  However, generally, the greater the number of times a search term appears in metatags and in the text of the webpage itself, the greater the likelihood that a search engine will rank the website higher in the search results (page 1 of the results list as opposed to page 6, for example). Red Label is a travel business that offers online travel information services and bookings through its website redtag.ca.  Red Label has three registered trademarks: “redtag.ca”, “redtag.ca vacations” and “Shop. Compare. Payless!! Guaranteed”.   411 Travel is an online travel agency offering information to customers through its website.  Red Label uses Google Analytics to monitor traffic on its website.   When Red Label experienced a lull in web traffic, their investigation revealed that 411 Travel had been using Red Label’s registered trademarks as metatags.   As a result, some people searching for the Red Label website, instead ended up at the 411 Travel website providing the same travel services. Red Label alleged lost revenue of $760,000.  US trademark law has a doctrine of “initial interest confusion”, under which trademark confusion (and thus infringement of a registered trademark) occurs when a customer seeking a particular brand of goods or services, is drawn to a competitor’s business through the competitor’s use of the first company’s trade name or trademark to misdirect the customer’s initial interest.  The judge in the Red Label case, Justice Manson, held that the doctrine of “initial interest confusion” does not apply in Canada.  Justice Manson concluded that a search engine merely gives the consumer a choice of independent and distinct links that he or she may choose from, rather than directing a consumer to a particular competitor.  Rankings may affect the choice to be made, but nevertheless, such a choice exists.  Justice Manson declined to find that the use of metatags alone constituted “passing off” or “trademark infringement”.   Here, there was no use of any of Red Label’s trademarks or trade names on 411’s visible website. The website was clearly identified as 411 Travel Buys’ website. There was no likelihood of deception as to the source of the services provided on the 411 Travel Buys website, and the consumer was free to select the link to the Red Label website and disregard the 411 Travel Buys website.  Please drop the writer an email at dthompson@tcllp.ca if you have any comments as to whether this was a “just” result.