The Hidden Danger of Invisible Trademark Infringement

Modern technology presents some very unique challenges for the management and protection of intellectual property. We recently wrote about how intellectual property laws apply to “Non-Fungible Tokens” (NFTs). These and other issues are at the forefront of discussions for many individuals and businesses, but another issue companies need to be aware of is what’s called “invisible” trademark infringement.

Your trademarks are protected from use and abuse by other organizations. This means they have no right to use your mark for their own personal benefit. You can comb through companies’ websites and advertisements to try and locate infringement, but the challenge here lies in what is not readily visible.

Invisible trademark infringement (sometimes referred to as keyword advertising trademark infringement) takes place on a company’s website in the source code. Most companies have “meta tags” which are embedded in the code of a website to generate more traffic to the website. Companies will throw popular and generic keywords in what is essentially invisible text in order to move up the “rankings” on Google’s search engine. What many companies will do, however, is attempt to take advantage of well-known companies by embedding their protected slogans, products, and phrases in the source code.

The entire goal here is to generate revenue themselves off the back of other people’s hard work. This puts the owner of the trademark at risk as trademark confusion and genericization can lead to the cancellation of a trademark.

Generally, the courts will side with the owner of the trademark in these cases. The infringement follows all the same standards as the infringing party is using the mark for their own personal profit and benefit. The Second Circuit and Ninth Circuit U.S. Court of Appeals have both ruled in favor of the trademark holder, indicating a federal standard declining the use of trademarks in embedded code and meta tags by anyone other than the original registrant.

Navigating modern technology and preventing your intellectual property from being stolen can be a chore many businesses don’t have the time to take care of. These unnecessary burdens put intellectual property registrations at risk from companies big and small.

At McDermott IP Law, our focus is on protecting client innovation. We want to make sure your registered trademarks aren’t being stolen by competitors for their own profit. If you believe another company is embedding your marks in their code or have other intellectual property needs, call our offices today.

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McDermott IP Law

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