April 16, 2015 By: Taiji Yoshino
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In a recent Decision, Red Label Vacations Inc. (redtag.ca) v. 411 Travel Buys Limited (411travelbuys.ca), the Federal Court found that the use of another website’s ‘metatags’ may not infringe copyright. A ‘metatag’ is a short phrase or word that is embedded in the source code of a web page, but is not visible on the website itself, and is used for the purpose of search engine optimization (SEO).

The plaintiff in this case was Red Label, a travel business that offers online travel information services and booking through their website, redtag.ca. Red Label has three registered trademarks, “redtag.ca” (TMA657520), “Shop. Compare. Payless!! Guaranteed & Design” (TMA675219); and “redtag.ca Vacation & Design” (TMA657750), all of which are in association with travel agency services and the on-line sale of airline tickets.

One of the defendants, 411 Travel Buys is an online travel agency, which was incorporated four years after Red Label. When Travel Buys’ website went online in 2009, a number of its webpages included very similar content to Red Label’s webpages, including metatags such as ‘red tag vacations’ and ‘shop, compare & save’. It is interesting to note for context, that in 2009 the owner of Red Label purchased the domain name “411travelbuy.ca” in his wife’s name, with the intention of selling it to Travel Buys for a profit, and that content on the website directed visitors to the redtag.ca website.

For a period of approximately 12 months following Travel Buys’ website launch, Red Label’s website experienced a lull in web traffic and revenue. The plaintiff travel business, Red Label, brought an unsuccessful action for copyright infringement, trademark infringement, passing off and depreciation of goodwill in the plaintiff’s trademarks.

The Court considered a number of issues related to copyright, trademarks and passing off. One of these issues was whether or not copyright subsisted in Red Label’s metatags, and if so, did the defendants infringe them by using the same metatags on their website, copying the style sheet or using the same “look and feel” as Red Label’s website? The question of whether a metatag fits within the scope of copyright continues to be debated by Canadian courts, and in its analysis, the Federal Court considered a number of existing cases on the issue. 

The Court found that copyright did not subsist in Red Label’s combination of the title, description and key word metatags used by the defendants; on the cascading style sheet; or on the look and feel of the site. If there had been infringement, it would have been inadvertently done and innocent. It is very interesting that despite these findings the Court noted that there was, “no dispute that in this case, the Defendant 411 Travel Buys copied the Plaintiff’s metatags, in copying the title tags, meta descriptions and meta keywords of 48 pages of the 411 Travel Buys website. On some pages, even spelling errors in the Plaintiff’s metatags were reproduced”.

The Court concluded that the substance of metatags in this case did not satisfy the requirements for acquiring copyright protection in Canada, since there was, “little evidence of any sufficient degree of skill and judgement in creating these metatags, as is required by the test set out by the Supreme Court of Canada in CCH… or for the originality required in compiling data or other compilations, as discussed by the Federal Court of Appeal in Tele-Direct.”  It also concluded that there had not been “substantial copying, when one has regard to the Plaintiff’s website as a whole. The Defendants only copied metatags on 48 pages of approximately 180,000 pages on the Plaintiff’s website.” In doing so, the Court acknowledged that there may be cases where sufficient originality in metatags to meet the threshold to attract copyright protection exists, and where there is substantial similarity between the original and allegedly infringing website that is observable when the sites are viewed as a whole.

This decision suggests that there may be limited circumstances where metatags used on a site will be protected by copyright where there is (1) sufficient originality in the metatags (in terms of the skill and judgement used in creating them) and (2) substantial similarity between the metatags used on the original website and those on the infringing one (when the sites are viewed as a whole). 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.