Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
E-Commerce News
Cell Phone Search Firm Enjoined; Trademark Use in Meta Tags Leads to Trademark Infringement
May 9, 2006
CELL PHONE SEARCH FIRM ENJOINED
On January 13, a federal court in Atlanta issued a temporary restraining order against Data Find Solutions ("DFS"), an online cell phone number search company, based on allegations by Cingular Wireless LLC that the firm unlawfully obtained Cingular customer information.
According to Cingular, DFS fraudulently posed as Cingular customers or employees in order to obtain the cellular telephone numbers of Cingular customers. This practice is known as "pretexting."
According to the complaint, DFS touted its ability to sell or obtain Cingular customer confidential cell phone numbers on the following Web sites: www.locatecell.com, www.celltolls.com, www.datafind.org, and www.peoplesearchamerica.com.
The temporary restraining order prohibits DFS from:
- attempting to gain any information from Cingular regarding its customers;
- using the names of Cingular employees or customers for any purpose;
- contacting Cingular for any reason;
- providing Cingular information already in its possession to any third parties;
- advertising that it "can or will obtain information regarding wireless telephone subscribers" (the court on Jan. 19 modified the order to limit such advertising to information concerning Cingular customers);
- possessing any confidential customer information obtained from Cingular; and
- disposing of any confidential customer information other than by returning it to Cingular.
In the court's view, the TRO was not terribly extraordinary. The TRO would not enjoin all of DFS' business and, according to the court, "it appears the injunction would simply enjoin [DFS] from doing what they cannot do lawfully."
TRADEMARK USE IN META TAGS LEADS TO TRADEMARK INFRINGEMENT
Using meta tags that incorporate another entity's trademark to attract customers to a competitor's Web site is a form of initial interest confusion for purposes of trademark infringement, according to a federal trial court in Ohio.
According to the complaint in the Ohio action, Tdata Inc., a developer of software for managing aircraft maintenance and repair, infringed the trademarks of Aircraft Technical Publishers ("ATP") by using the "ATP" mark in metatags on Tdata's Web sites. A meta tag is an HTML tag which provides information about a web document. Unlike regular tags, meta tags do not provide formatting information for the browser. Instead they provide information such as the author, date of creation or latest update for the page, and keywords which indicate the subject matter. Search engines often use keywords from meta tags to index their databases. By using ATP's marks in its own meta tags, Tdata was able to attract to its own Web site browsers searching for ATP.
A key factor for the court was its finding that Tdata had knowledge of the infringed-upon mark when it used it in metatags. Based in part on this finding, the court rejected Tdata's argument that the use of ATP's mark was a "nominative fair use." According to the court, "Tdata's use of ATP's mark in metatags is not in a good faith, descriptive sense, but is in a bad faith, bait-and-switch, create-initial-interest-confusion sense."
Tdata paid the price for its ill conceived strategy -- the court granted ATP's motion for summary judgment on trademark infringement and denied Tdata's motion for summary judgment of non-infringement.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.