Analysis: She Yifeng, Zino (Law Firm, Shanghai Fonda) Site Release date :2007-11-5 7:46:09
First, the question presented: Does the meta tags based trademark infringement
In this article, "set meta tag" means to another's trademark as the World Wide Web hypertext links embedded into the language parameters of the source code of conduct page. Set meta tags on whether trademark infringement of the law, my justice in actual cases have not yet occurred, but has not been much in-depth academic research. Huang Hui teachers in their "well-known trademarks and the legal protection of famous trademarks," a book on the U.S. Court of several related case, and accordingly that the mark is set to use the behavior of meta tags should be classified as under network environment One of the special trademark infringement. Other relevant academic review a few more who also set some meta tags constituted trademark infringement point of view, judges and Professor Cao Xinming Deng Fuguo and call attention to domain name should be like the type to give the Internet search engines as trademark infringement, trademark infringement online style (about another's trademark acts as a meta tag) great concern.
I agree with the need to explore the full attention and set meta tags, but does not distinguish between the specific facts of the case and Yigai that such acts should constitute trademark infringement point of view but can not agree. To judges and Professor Cao Xinming Deng Fuguo frame of reference of the domain name selected as the type of trademark infringement online, whether it be World Intellectual Property Organization's "unified dispute settlement procedure" or our March 17, 2006 entry into force of the new version of "Domain Name Dispute Resolution" In fact, no set to use another's trademark as a domain name constitutes trademark infringement should be a general principle, but requested review of the actual circumstances of the case whether the domain name registration with "malicious" and provides a relatively strict judge, "malicious" standard .
As domain name registration may in good faith and reasonable use of another's trademark, like, I believe that the same can not be excluded based meta tag does not fall into the actual scope of protection the rights of trademark owners the situation. The basic principles of trademark law that the main purpose of trade mark to distinguish the goods or services from, if others are not out of the use of trademarks to distinguish the goods or services, but the source of a content description or instructions, the trademark owner and not competent to prohibited. To examine from an economic point of view, mark as an economic design (economic device), its purpose is to deliver quality goods or services, information, and thus the establishment of specific goods or services, consumers and the link between reduced when consumers buy selection costs, promote economic efficiency (economic efficiency). Therefore, if the others did not disparage the use of trademarks on the goods or services mark the delivery of quality information, essentially the same design as one of the economy is certainly no need to regulate the legal system.
In fact, even more to confirm the existing case law trademark infringement based meta tag of the United States, its academics have not formed meta tags based consensus must be trademark infringement. Since meta tags are not generally visible but hidden in HTML source code and its function and distinguish the goods or services unrelated to the source, there are still American academics that the Lanham Trademark Law apply to set up the application of meta tags is awkward (awkward fit) .
In Germany and Austria, judicial practice, there is also a large number of cases of the set meta tags, and both the Supreme Court verdict had been involved in the use of another's trademark as a meta tag case, we can see that German and Austrian courts have already issues related to the formation of a more mature and unified approach and demonstration system to judge. In the relevant case law, the German and Austrian courts both recognized set meta tags constituted trademark infringement case, also has determined that the case does not constitute infringement, which is located between the academic community advocate for the meta tag should be treated differently according to the actual situation consistent with the mainstream view, which for promoting China's development of judicial practice in this regard has an important reference. In view of the current set meta tags that must constitute trademark infringement point of view, I particularly seized German and Austrian court found no infringement in the case of all one, review the following to satisfy the fellow colleagues, to the judicial practice of the future may provide an idea .
(A), the basic situation of the case
Department of plaintiffs and defendants were distributors of metal marking machine. Among them, the plaintiff in the International Classification of Goods Class 7 (metals and metal products, impression machine, metal marking machine) on the registration of the "Numtec-Interstahl" trademark. The defendants set up the Internet, a description of their company and product Web site, the site's source code (Quelltext) contains "Numtec-Interstahl" trademark. The defendant listed on the site has 32 of its patents, and indicate in which of the five sold to the plaintiff in 1996. At the same time, the defendant with the plaintiff on its Web site produced by "dot matrix ink marking machine" of the photo, and labeled in the side of the defendant's company name.
Accordingly, as the plaintiff made no complaint (Unterlassungsanpruch), requesting an interim injunction against the defendant, judge, including the defendant's Web site:
1, as a propaganda tool against the defendant in the recommended list (Referenzliste) in the list of products using the plaintiff rather than defendant's projects;
2, prohibiting photographs of the defendant to the plaintiff product label or promote self-development by the defendant;
3, prohibit the defendant claims to already have 15 years experience producing digital molding machines and technology (in fact, have formed the defendant in 1995);
4, against the defendant on its Web site, particularly in the website source code to use the plaintiff's "Numtec-Interstahl" trademark as keywords (meta tags).
Court of First Instance (Erstgericht) ruling against the defendant already has 15 years of its experience and technology of false propaganda, but dismissed the plaintiff's other claims. Appeal Court (Rekursgericht) part of the original sentence, the verdict against the defendant to further the purpose to promote or sell products using photos with the plaintiff and the defendant web site, particularly in the website source code to use the plaintiff's "Numtec-Interstahl" trademark as keywords ( meta tag).
(B), the Austrian Supreme Court's decision
Austrian Supreme Court held that the defendant's purpose to promote or sell products using photos with the plaintiff, did make the public mistakenly believe that the defendants were the plaintiff product manufacturers, in violation of the Austrian Unfair Competition Act the provisions of Article 2. However, with regard to the defendant the source code on its Web site to use the meta tag issue of the plaintiff trademark law, the Austrian Supreme Court and Court of Appeals opinion is different. Here introduces its verdict on the meta tags constituted trademark infringement of reasoning (Begruedung).
Austrian Supreme Court first pointed out the meta tags and marks in different functions, namely, those concerned for web browsing meta tag is not generally visible to (Sichtbar), but only in making the HTML page source code files. However, the Austrian Supreme Court has recognized, in the search engines (Suchmachine) Enter a Keyword, the search engine Robot program is not only content but also from the source code from the web to find matching keywords with the information And the website source code meta tag keywords set to web search engines determine the possibility for the relevant content than just web pages that contain the keywords with high search engine will give priority to the search list display Site search keywords meta tag for the site, therefore, will be well-known trademark or name or logo of a specific meta tag to use as a web page, you can improve the site's location in the search list.
Austrian Supreme Court held that it was necessary to discuss the source code on the site using another person's trademark as a meta tag similar to the search engine behavior and the "manipulation" (Manipulation) is a violation of trademark and unfair competition law. Austrian Supreme Court said it has noted that U.S. courts based on the meta tag infringement case: the source code in your website using other people's trademarks as meta tags, generally recognized as damage to the U.S. Court of trademark rights of others. However, the Austrian Supreme Court also pointed out that meta tag infringement on their academic point of view is not uniform. Austria and the Supreme Court cited the case of BMW auto repair shop (EuGH BMW Motowerke AG und BMW Nederland / Karel Deenik) case, that the European Court has confirmed that the European Trademark Directive under the provisions of Article 5, only in the identification of others as a "trademark use ", the logo will distinguish the meaning of the source of goods or services to use, can only be trademark infringement. Austrian Supreme Court then quoted the German scholar (Kur) of the view that meta tag in the Web site may constitute "trademark use of" meta tags, though not generally visible, but for search engine recognition, Internet users and may that a trademark and the use of the trademark as a meta tag of the web site link. Therefore, in the website source code to use another's trademark as a meta tag may constitute trademark of "indirect use" (mittlenbare Verwendung).
Austrian Supreme Court then quoted the view that the satisfaction of other conditions still need to determine the use of another's trademark as a meta tag site whether the conduct constitutes a trademark sense to use, and its criteria for judging the public's understanding for such behavior. Austrian Supreme Court held that the public do not expect a search engine, enter keywords in the search results provided only after the trademark owner or its affiliated companies information, but we do expect these web site also may include the use of the trademark or The trademark product-related additional information. Therefore, meta tags and site-related cases as possible in terms of trademark fair use defense space. In principle, as long as the corresponding website do not include unfair competition and trademark laws inconsistent with the information, the source code in its use of other people's trademarks as meta tags should be allowed.
For these reasons, the Austrian Supreme Court held that, to judge the defendant to use its Web site "Numtec-Interstahl" trademark as a meta tag is a violation of trademark law and unfair competition law, the case must be considered in the following circumstances: the defendant on its website a list of its large number of patents, and an indication of which patents have been transferred to other companies, defendants have used the access to its proprietary trademark of the transferee. Accordingly, the Austrian Supreme Court held that the defendant used on its website for "Numtec-Interstahl" trademark as a meta tag has a legitimate interest (Berechtiges Interresse), because the defendant needed to allow potential customers to know their system is the transfer of such patents technology and the inventor of the first to which companies are using these technologies. Therefore, the defendant and the site does contain "Numtec-Interstahl" trademark-related information, but such information does not make the relevant public that the defendant is "Numtec-Interstahl" trademark owners, and ordinary Internet users will not that the search engine list of search provided by the website, even high ranking sites are linked to the trademark owner or its corporate website. Austrian Supreme Court has found the defendant's use of meta tags for the site consistent with the Austrian Trademark Law Article 10 on the third element of fair use of trademarks, that (1) the user for use of the mark has a legitimate interest, and (2) Trademarks used in compliance with existing business and competition practices. Also, the BMW garage in the European Court of Justice also confirmed the case, for instructions on the use of a trademark for maintenance and repair of goods used for the purposes of the mark, the Austrian Supreme Court that the judge is also in line with European Court's jurisprudence. Austrian Supreme Court also held that because the defendant used "Numtec-Interstahl" trademark as a meta tag site not the purpose of misleading the public, the plaintiff based on the Austrian Unfair Competition Law of the web site meta tag does not hold the same claim. Therefore, the Austrian Supreme Court web site meta tags eventually commuted the issue, rejected the plaintiff's preliminary injunction thereon.
(A), the basic situation of the case:
The original, both the defendant Department of gun sellers. Among them, the plaintiff called the "Kotte & Zoller Co., Ltd.", and on August 12, 2002 registration of the outdoor products category of text and graphics trademarks, trademarks including "Kotte & Zeller" in the text. The defendant set up at its Internet site www.softair-shopping.de will "Kotte & Zeller" as a meta tag to use. The plaintiff claims under the corporate identity Act (Unternehmenkennzeichenrecht) and competition law (Wettbewerbsrecht) proceedings against the defendant. The defendant is a defense, said the use of its website "Kotte & Zeller" as a meta tag is due to be sold on the site with the plaintiff produced "Kotte & Zeller" trademark products.
District Court (Landgericht) According to sue for decision, if the corresponding website already exists and the plaintiff is not related with the "Kotter" and / or "Zelle" words of information, products or content, the defendant shall not be in the future on the Internet HTML code to use or permit others to use the "Kotter" and / or "Zelle". District court and the defendant made the decision to fulfill disclosure obligations (Auskunftserteilung), as well as damages for the defendants to fulfill the obligations (Verpflichtung zur Schadenersatz) decision.
In the appeal process (Berufungsverfahren), in the plaintiff as part of the appeal does not modify its request (Unterlassungsantrag), based on statements the defendant made the omission (Unterlassungserklaerung), the original, both the accused and in January 27, 2004 announced that the legal dispute has been resolved.
(B), Düsseldorf High Court's decision
In view of the two sides have resolved disputes, Düsseldorf High Court had the task of the entity is not the case and render a decision controversial, but the German Code of Civil Procedure section 91a according to the provisions of Article judgments sharing both the cost of litigation. Dusseldorf court held that the case therefore need to reconsider the issue controversial entity, and ultimately determine the cost of litigation by the plaintiff because it had an unfavorable outcome of the proceedings may take.
- Registered trademark of the claims based on
Düsseldorf High Court held that the plaintiff under its "Kotte & Zeller" trademark use of site meta tags for the defendant's conduct can not be established the right of the request, because the defendant did not violate article 14 of the German Trademark Law and the provisions of Article 15 .
Düsseldorf High Court also distinguished between the first meta tag and mark the difference, that the defendant for the "Kotter" and "Zelle" does not identify the meaning of the use of the use of (kennzeichenmaessige Verwendung). Düsseldorf High Court cited the European Court of BMW auto repair shop on the case and other jurisprudence of the German Federal Supreme Court's view that only in the sense of identity to use other people's trademarks, the trademark will distinguish goods or services as a source of Time can only be trademark infringement.
Then, Düsseldorf High Court cited a number of German and Austrian scholars, academic reviews, discusses the meta tag does not identify the sense of use: meta tags are not generally visible, its role is to search engines to read, and according to different search engines operation mechanism and the different ways in the search list display with the meta tag key words related Internet sites. Therefore, public awareness of the meta tag is its ability to "statements" of the site content with search keywords, and mark the distinction between role (unterscheidungskraeftig) different meta tags should be "descriptive" (aussagekraeftig) role.
Although meta tags are used as words (which in itself is a particular goods or services not related) may be due to the user's arrangement with distinction in the trading process of the functions of specific goods or services, or use the meta tags of the site with a specific goods or services, the public only to the use of meta tags as "on the identity of the application" (Kennzeichennennung). Similarly, although the search engine, enter a keywords meta tag will be based on relevant search results for sites, and not conclude that the meta tag with the logo on the role. The role of meta tags is only made when the search engine, enter search keywords to retrieve and display related sites. Meta tag does not guarantee show only the keywords registered trademark of the trademark owner or its products or services. So, while the public when the use of search engines that will use a word as a meta tag between the website and key words or less should have some connection, but according to search keywords meta tags, as the nature of the public can not assume that search engines display search results will only use the meta tag as a corporate logo identity owner.
Düsseldorf High Court then cited to a particular vocabulary as a meta tag to use for various reasons, for example, all of the words may be the site's name, site owners may wish to adopt the use of meta tags that the distribution of a brand Product or the website contains a site for all products and brands comparison between the advertisements. Therefore, the Düsseldorf High Court found that the use of "Kotter" and / or "Zelle" possibilities as a meta tag is diverse and is not necessarily related with the plaintiff.
Finally, to further elaborate its views, Düsseldorf High Court and meta tags were compared with the domain name, that name is unique, so the specification would be appropriate to identify all people with a fixed link between and the same meta tags might correspond to many of the sites, there is no need, in fact, not possible through the application of trademark law to the rights belonging to a particular person.
In summary, Düsseldorf High Court that the prohibition of the trademark owner the right (Verbietungsrecht) only applies to the trade mark identical or similar goods or services category, the same is true in the Internet space, since the defendant was not the meta tag As a trademark, of course, their behavior does not exist the possibility of violation of trademark law.
- Based on claims of unfair competition law
Düsseldorf District Court, the High Court does not agree with the so-called defendants improperly intercepted customers in violation of unfair competition law decision. Düsseldorf High Court that the judge on whether the use of meta tags do not have a competition law on the legitimacy (wettbewerbliche Unlauterkeit), should be under German unfair competition law and the norms of market competition to take a more conservative attitude. Düsseldorf High Court held that, under the practice, only the use of meta tags in its Web site who is interested in the search list on the improper access to a higher position when the party constitutes unfair competition, and in this case, the search engine Enter "Kotte & Zeller", the defendant in the search list position far behind the plaintiff's own website, therefore, the defendant will be "Kotte & Zeller" is set to conduct meta tag does not seek unfair competition for interests.
Not difficult to see from the above two case, German and Austrian courts for the meta tag is not to generalize based approach (pauschale Verurteilung), but the specific circumstances of the case according to discriminate between (differenziere Betrachtung). Germany, Austria and the Court of the rational use of the trademark law principles apply to the network environment, the establishment of a meta tag to use people with "legitimate interests" is not an infringement of legal principles.
The legal principles established for China's future may involve the judicial practice of meta tags is important for reference. In my opinion, set meta tags on my academics must constitute trademark infringement and its view of reality early on to others, awareness of trademark registration for the domain name is similar to that in the existing rules of law when faced with the tension technology to make a more defensive intense reaction, and in the case of ill-prepared in line with the principle of protection of intellectual property inappropriately expand the scope of protection the rights of trademark owners. In fact, our judiciary and the academic community in dealing with the acts of another's trademark registration as domain knowledge, the true also experienced no "bad faith" domain name restrictions and misreading the function - to set a "vicious" restrictions - a more stringent "malicious" change the course of development constraints, and ultimately for the domain names have been over-exaggerated to make a reflection. The deal set meta tags, if we can and in depth study, including Germany and Austria and other countries, the jurisprudence of maturity, compare and learn from foreign judges way of thinking and theoretical system, it is possible to avoid the first Guofen rash and calm reflection before The old road, in the implementation of public policy aspects of trademark law to better grasp the trademark owner's private interests and public interests in the balance.
References:
1, Huang Hui: "well-known trademarks and famous trademark protection of the law," legal Press, published in 2001;
2, has Chenru Ming: "Principles of Trademark Law", China Renmin University Press, published in 2003;
3, Dengfu Guo, Cao Xinming: "Online search engine of trademark infringement," Legal Education Network, Internet Time: October 13, 2007;
4, Xue Hong: "Trademark Infringement on the Internet", "Henan Institute of Law," 1999 No. 1;
5, Hao Junjun: "network, trade mark" invisible "use of the legal issues", APIPA Intellectual Property Information Network, Internet Time: October 13, 2007;
6, Tang Guangliang: "on the domain name dispute with the non-reflection," China Law Net, Internet Time: October 13, 2007;
7, Landes and Posner (1987). Trademark Law: An Economic Perspective. Journal of Law and Economics 30: 265-309.;
8, Paylogo (2000). Search Engine Manipulation, Creative Metatag Use or Trademark Infringement?. Journal of Law and Technology 40 IEDA 451.;
9, Kur (2000). Metatags - pauschale Verurteilung oder differenzierende Betrachtung? CR 2000: 448.
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