Un-Metatag Me! Copying metags found non-infringing by FCA

In Red Label Vacations Inc. v. 411 Travel Buys Ltd., 2015 FCA 290, the Federal Court of Appeal upheld a decision of Justice Manson dismissing claims made by Red Label under the Copyright Act, RSC 1985 c. C-42 and Trade-marks Act, RSC 1985 c. T-13.

Red Label and 411 Travel provide travel services to Canadians, including using a website to market these services. A student at 411 Travel copied metatags from the Red Label site. Metatags are parts of websites used by search engines to index websites and create search results.

The copied metatags included Red Label’s name and slogan; however, there was no evidence that the copied words appeared directly on the website. The website was taken down and the copied metatags removed when Red Label informed 411 Travel of the copying.

Red Label claimed copyright existed in the metatags and 411 Travel breached their copyright. They also claimed that 411 Travel breached copyright by copying the look and feel of Red Label’s website. Furthermore, Red Label claimed trade-mark infringement, passing off and depreciation of goodwill.

Justice Manson of the Federal Court dismissed all of Red Label’s claims.  Red Label then appealed.

Justice Webb, writing for the majority of the FCA, upheld Justice Manson’s copyright holdings noting they were findings of fact that the FCA should not disturb.

In upholding the trade-mark infringement analysis, Justice Webb noted that the facts did not establish trade-mark infringement:

22.     In my view it is implicit in the Federal Court Judge’s reasons that he found that, in this case, 411 Travel Buys did not use any of Red Label’s trade-marks (or any trade-marks that would be confusing with such trade-marks) for the purpose of distinguishing or identifying 411 Travel Buys’ services in connection with Red Label’s services. In the one instance to which this Court was directed by Red Label, the reference to “Red Tag Vacations & Pay Less Guaranteed!” was in a phrase which directed interested parties to “Book Online with Red Tag Vacations & Pay Less Guaranteed!” Since no one could book online by using the 411 Travel Buys website, this reference would actually direct potential customers to Red Label’s website. While, in some situations, inserting a registered trade-mark (or a trade-mark that is confusing with a registered trade-mark) in a metatag may constitute advertising of services that would give rise to a claim for infringement, in this case, this reference to “Book Online with Red Tag Vacations” cannot be considered to be advertising the services of 411 Travel Buys in connection with the services offered by Red Label.

Justice Dawson, in her concurring opinion, noted that the Federal Court’s decision “must be read in light of the facts before the Court. The extent to which a trademark may be used in metatags without infringing the trademark is, of necessity, fact specific.”

A copy of the decision of the FCA can be found here.