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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and not-from-the-horse's-mouth assessments of keyword metatag efficacy, not surprisingly continue to stick with the outdated legal precedent.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, Associate Professor, Santa Clara University School of Law. Visit the blog maintained by Eric Goldman here.

Related topics: Law, Web