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Wednesday, April 16, 2008 At issue are a pair of medical product competitors and “meta tags”—words and phrases a business might embed within its Web site computer code to drive search engine traffic to the site. Axiom Worldwide acknowledged that it used two of North American Medical Corp.'s registered trademarks—the terms “Accu-Spina” and “IDD Therapy,” references to treatments for back pain—as meta tags for its own Web site. According to the 11th Circuit opinion by Judge R. Lanier Anderson III, a computer user who entered the trademarked terms into a Google search would turn up Axiom's Web site as the second most relevant search result. Google also provided the searcher with a brief description of Axiom's site that included and highlighted the trademarked terms. “This, of course, is misleading to the consumer because Axiom is not related in any way to NAM, nor does Axiom distribute or sell the products of NAM,” wrote Anderson, joined by Judge Susan H. Black and Senior Judge James C. Hill. “Moreover, there was nothing in Axiom's website itself to disabuse consumers of the notion (suggested by the Google search) that there is some relationship between Axiom and NAM,” Anderson added. “In other words, if consumers accessed Axiom's website after viewing the Google search results, they would be told all about Axiom's products but would be met with utter silence with respect to NAM's products.” Despite this finding, the panel vacated a preliminary injunction U.S. District Judge Jack T. Camp of the Northern District of Georgia had issued against Axiom barring it from using North American Medical's trademarks within meta tags. (Axiom maintained on appeal that at the time Camp issued his injunction the trademarked terms already had been removed from the code of Axiom's site.) The judges said that a 2006 patent decision by the U.S. Supreme Court may have undermined the presumption that trademark plaintiffs will be irreparably harmed absent an injunction—a holding with possible implications for all trademark cases in the 11th Circuit. But the panel also offered hope for North American Medical by indicating for the first time that in some cases use of a competitor's trademark as a meta tag may provide the basis for a successful trademark claim. Although there's some question as to the extent Internet search engines still use those tags in the algorithms that determine search results, the 11th Circuit's decision on the meta tag issue may affect other key cyberlaw issues. Avoiding big questions The case, argued last December, could have addressed rulings by the 7th and 9th Circuits that the likelihood of “initial interest confusion” created by use of a competitor's trademarks in meta tags could provide the basis for a trademark claim. But Anderson wrote that North American Medical did not have to reach that far, because the Google search resulted in a brief description of Axiom's Web site that included and highlighted North American Medical's trademarks—enough to create a likelihood of confusion about the source of the products referenced. The case allowed the 11th Circuit to interpret a 2006 U.S. Supreme Court decision in a patent case, eBay v. MercExchange, 547 U.S. 388. In that decision, the court admonished lower courts for applying categorical rules on injunctive relief. The 11th Circuit panel declined to decide whether the eBay decision forbids the sort of presumption Camp had employed in the trademark case—that without an injunction North American Medical would suffer irreparable harm. But Anderson wrote that eBay at least is “applicable,” so the panel wants Camp to take another look at the issue. North American Medical also has made false advertising claims based on statements Axiom made about its product, the DRX 9000. The 11th Circuit also tossed out Camp's preliminary injunction prohibiting Axiom from making those challenged statements, also on irreparable harm grounds. Needing proof Atlanta lawyer George P. Shingler of Casey Gilson, who represents Axiom along with Tampa lawyer L. Joseph Shaheen Jr., said the ruling on irreparable injury in his client's favor “changes the playing field.” “There's going to have to be proof of some sort of irreparable injury other than damages that can be compensated with money,” said Shingler. “Typically, irreparable injury would involve some injury to good will or something that looked like your product had been disparaged or something like that.” But with intellectual property cases, he said, “it's sort of hard.” Andrew B. Flake of Atlanta's Arnall Golden Gregory, one of North American Medical's lawyers, said the 11th Circuit ruling gave Camp wide parameters to revisit the irreparable harm issue and issue the same kind of injunction. There's a very strong record, he added, that North American Medical will be irreparably harmed absent an injunction, in particular that the two companies are direct competitors. “There's evidence that—either in the record or that could be presented to the court—that a lost sale based on this false advertising creates a direct impact to our client's bottom line.” While he was pleased with the aspect of the opinion indicating Axiom might have infringed North American Medical's trademark, Flake said the court's pronouncement on that point was a narrow one. “There are cases where a competitor can use meta tags—for example comparative advertising,” he said. It might be appropriate to use a meta tag where the intent was to compare two products, he said. “Here we had our trademarks being hidden for no apparent purpose other than to direct Internet traffic to our competitor,” Flake said. The Google case In its briefing to the 11th Circuit, Axiom pointed to a 2005 Emory Law Review article by Eric Goldman, a professor at Santa Clara Law, to the effect that since 2002 only one major search engine, Inktomi, still incorporates keyword meta tags in its algorithm. “It's outmoded technology now, I would guess,” Shingler said Monday. Perry Binder, a litigator-turned-law professor at Georgia State University's Robinson College of Business who has expertise in intellectual property issues, said he doesn't know whether that's true since Google protects its proprietary methods. He thinks the 11th Circuit opinion could influence the 2nd Circuit's consideration of Rescuecom v. Google, No. 06-4881-cv. In that case, a federal district court judge granted Google's motion to dismiss a trademark claim over its AdWords program—by which advertisers bid on keywords an Internet user might enter as a search term on Google. According to the plaintiff's complaint as recounted in the district court opinion, Google then links the advertisement and sponsored link to the purchased keyword. When an Internet user enters the keyword, it triggers the sponsored link to appear on the search results page. A possible point of distinction is that in the Rescuecom case pending before the 2nd Circuit, Google has contended that its policy prohibits competing advertisers from making any mention of the plaintiff's trademark in the text of their ads. The 2nd Circuit might also look at its own precedent, where it has considered a related issue about pop-up ads. Binder said he thought the 11th Circuit got the Axiom case right on the facts before it. The inclusion of the highlighted trademarks in the visible search results is what put the case over the line, he said. “It's my opinion that the mere use of a key word by a competitor would not in and of itself be a trademark violation,” said Binder. The idea, he said, is that consumers are sophisticated enough by now to know how search engines work. “However, the trend seems to be that if you use the competitor's mark within your sponsored ad then there's possible infringement.” The 11th Circuit case was North American Medical Corp. v. Axiom Worldwide, No. 07-11574. |