Metatags and Trademark Infringement: Case Dismissed

As technology advances and evolves so must our laws and regulations. Recently the Federal Court of Canada had to consider the implications of copyright and trademark infringements when it comes to the use of metatags. Metatags are hidden words or phrases used in a website's source code that enable it be found by search engines.  In the recent case, Red Label Vacations Inc v 411 Travel Buys Limited, 2015 FC 19, trademarked phases of Red Label Vacations Inc. were used in the meta tags of their competition, Travel Buys Limited. Should this count as a copyright and trademark violation even though these phrases are not visible to the public eye? Does it cause confusion in regards to the brands?

The claims for copyright and trademark infringement by the plaintiff, Red Label Vacations Inc., was dismissed by Justice Manson.  He commented:

"The use of metatags in a search engine merely gives the consumer a choice of independent and distinct links that he or she may choose from at will, rather than directing a consumer to a particular competitor…Even if a searcher is looking for the website connected with a particular trade name or trademark, once that person reaches the website, there must be confusion as to the source of the entity or person providing the services or goods. If there is no likelihood of confusion with respect to the source of the goods or services on the website…" 2015 FC 19

The case was dismissed as the Court did not view this instance as being a copyright or trademark infringement. However, what will the implications be for future rulings in this area? It appears as though it may be difficult in the future to establish a case of copyright and trademark infringement when it comes to metatags in Canada.