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Google Confirms That Keyword Metatags Don't Matter

Eric Goldman

Few Internet technologies have horked cyberlaw as much as keyword metatags. Back in the 1990s, some search engines indexed keyword metatags, which encouraged some websites to stuff their keyword metatags as a way of gaming the rankings. Judges took a dim view of this practice, largely because the surreptitious nature of keyword metatags seemed inherently sinister, regardless of their efficacy. In the interim, search engines wizened up. Some search engines stopped indexing keyword metatags, and others greatly diminished the credit they assigned to keyword metatags. As a result, for the better part of this century, keyword metatags have had either zero or de minimis effect on search engine placement.

However, the anti-keyword metatag legal doctrines developed in the 1990s have persisted, even as the technology changed. Although occasionally judges have gotten it right (see, e.g., Standard Process v. Banks). most courts still treat the presence of a third party trademark in keyword metatags as essentially a per se trademark infringement — even if the keyword metatags didn't (and couldn't) change the search results ordering or any consumer's behavior. For a quick sense of the ridiculous state of keyword metatag jurisprudence, take a look at my recent blog posts on the topic.

The current state of nature has put keyword metatag defendants in a bind. On the one hand, the law treats the inclusion of third party trademarks as per se trademark infringement. On the other hand, everyone in the industry knows they are irrelevant but search engines have been less than forthcoming about the components of their search engine algorithms, leaving scanty citable material to support that proposition. And judges deciding between the weight of a dozen years of anti-keyword metatag legal precedence and not-from-the-horse's-mouth assessments of keyword metatag efficacy, not surprisingly continue to stick with the outdated legal precedent.

This makes Google's announcement yesterday so exciting. Google's star techie Matt Cutts says in plain language that Google's core search algorithm ignores keyword metatags. This isn't news in the sense that we've known this about Google for years, but I believe this is Google's first public confirmation of keyword metatag's irrelevancy. Matt's short video clip goes so far to tell trademark owners to quit suing over keyword metatags. Amen!

I've long believed that trademark law shouldn't intervene even if search engines index keyword metatags because merely appearing in the search engine results for a third party trademark (without more) should be legally immaterial. Even if you don't agree with me on that proposition, I trust most everyone can agree that trademark law should ignore keyword metatags if search engines do. Now that we have confirmation that the dominant search engine disregards keyword metatags, let's hope judges do the same.

By Eric Goldman, Professor, Santa Clara University School of Law
Related topics: Law, Web
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I'm a bit confused. If, as you Michael Hammer  –  Sep 22, 2009 12:55 PM PDT

I'm a bit confused. If, as you point out, there is no valid reason (better ranking) to use keyword metatags including third party trademarks, then why do you suggest that the courts leave such use alone rather than simply suggesting that people stop including them on their websites?

If there is no value and as you point out that this information is publicly declared now, then why do it? Perhaps you are claiming in addition that intent is irrelevent.

There is no bind such as you claim in your article. Individuals place such third party trademarks in their keyword metatags in the hope of gaining a benefit at the expense of the trademark holders brand equity. The fact that they potentially fail in their aspirations is irrelevent.

Michael Hammer

Thanks for the reply Eric Goldman  –  Sep 22, 2009 1:11 PM PDT

Intent is one factor in the multi-factor test to determine consumer confusion, but it's not dispositive.  Plus, intent inferred from metatagging can be ambiguous.  For example, we might infer that the website wanted to communicate with prospective customers of a competitive brand, but that alone isn't "bad" intent.  In fact, I believe that's a healthy sign of a competitive market.  See my Deregulating Relevancy paper for more on that.

In any case, I do believe that futility is dispositive.  Trademark law ignores actions that never reached consumers except, perhaps, as signals of intent.  Keyword metatags are (and have been) the proverbial falling tree in the forest that no one is around to hear.

Eric.

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