Metatags, which are hidden descriptors inserted in the source code of webpages, were necessary to be tracked by first generation search engines. These search engines were not the most credible because web designers would ‘stuff’ their webpages with favourable metatags. Modern search engines have since evolved and have not used metatags since at least the turn of the century. Nevertheless, there have been several judgments across common law jurisdictions where judges have tackled the issue of whether use of a trademark in the metatags constituted trademark infringement. The conclusions have been varying because metatags are invisible to the average consumer. The jurisprudence that has resulted from these cases raises interesting questions on whether invisible use constitutes ‘use’ for the purposes of trademark law.
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