In the case, the 11th Circuit ruled that traction device maker Axiom Worldwide used a rival's trademarks in commerce by incorporating them in meta tags. "The facts of the instant case are absolutely clear that Axiom used (the plaintiff's) two trademarks as meta tags as part of its effort to promote and advertise its products on the Internet," the court wrote in a decision issued Monday.

Search engines sometimes use meta tags to find sites related to users' queries. When people enter keywords into a search engine, it returns sites that it determines are relevant. Factors that go into that decision can include whether the searched-for keywords are embedded in the HTML code of Web sites. But search engines also use other factors, such as whether particular sites are included in the human-edited directory known as the Open Directory Project.

The appellate court found that Axiom included the terms in meta tags "to influence Internet search engines" and that the tags caused Axiom to appear in the No. 2 spot in the organic results when users conducted searches on the trademarked terms. The 11th Circuit did not specify which type of meta tags Axiom allegedly used--or what, if any, evidence proved that the tags caused Google to display Axiom high in the organic results.

This dispute was centered on organic results and not paid search ads, but involves similar issues, such as when companies use trademarks to trigger paid search ads. Another appellate court, the 2nd Circuit, is now considering whether Google potentially violated trademark law by allowing rivals of computer repair shop Rescuecom to appear as paid search links when people search for the company. A trial judge had dismissed the case on the grounds that using a trademark to trigger an ad is not the type of use in commerce that is prohibited by federal trademark law.

The Axiom decision appears to conflict with a ruling of the 2nd Circuit Court of Appeals in a lawsuit by 1-800-Contacts against adware company WhenU. In that case, WhenU served pop-up ads that were triggered by users navigating to sites of the marketers' rivals. Although those sites often contained companies' trademarked names, the court found that using the Web site URLs to trigger an ad was not the type of use in commerce that violated trademark law.

The 11th Circuit said that Axiom's situation was different because the trademarked terms themselves appeared in the results pages in a confusing way. But the court also said the WhenU decision was not persuasive.

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said the court's decision in Axiom doesn't seem to take into account that search engines treat different types of tags--title tags, keyword meta tags and description meta tags--differently. In addition, the decision does not appear to consider that Google offers a personalized search service, which individualizes search results based on users' Web-surfing history.

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