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Linking, Framing And Metatagging

Niton Corporation v. Radiation Monitoring Devices, Inc., 27 F.Supp. 2d 102 (D. Mass. 1998)

Summary

This case demonstrates well the effect commercial use of the Internet can have on a lawsuit. During the course of this product disparagement and false advertising lawsuit, the plaintiff discovered that the defendant's web site contained metatags that were identical to those created by the plaintiff's webmaster and included the plaintiff's trademarked company name. Relying exclusively on this evidence, the court entered an order enjoining the defendant from using its web site in any way that might lead consumers to believe that the defendant's web site was the plaintiff's web site or that the parties are affiliated.

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Analysis

The plaintiff, Niton Corporation ("Niton") manufactures and sells instruments and software intended to detect the presence of lead in paint. Niton's products employ two detection methods - the "L-Shell" and "K-Shell" method. The defendant, Radiation Monitoring Devices, Inc. ("RMD") manufactures similar instruments that employ the "K-Shell" method only. The parties are thus competitors in several respects.

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Niton brought this action alleging that RMD used false and misleading statements on its web sites which misrepresented certain characteristics of RMD's products and which reflected negatively on Niton's product line. The alleged statements included representations that the K-Shell method was the superior or preferred method, that RMD's instrument was the only one to provide conclusive readings and was also the most effective lead inspection system on the market. Niton also alleged that RMD made statements suggesting that Niton's competing products were inferior to RMD's and that Niton's products were not recognized by the EPA or HUD, two important players in the lead detection field.

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On November 5, 1998, Niton's webmaster had discovered that RMD had copied large portions of Niton's web site's document source code. According to his affidavit, the webmaster ran an Alta Vista search using several words, including "niton." Finding several of the returned summary descriptions odd, the webmaster clicked through to those web pages. Although the URLs suggested that the pages belonged to Niton, they were actually pages from RMD's web site.

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Further investigation revealed that although RMD's web site contained no links to Niton's web site, RMD's source code, in particular its metatags, were identical in many respects to the source code Niton's webmaster used when creating Niton's web site. Except for the addition of the words "RMD", "LPA1" and "LPA-1", the keywords used by RMD were identical to those used by Niton, and included the word "Niton" as well as other words that did not describe RMD's product but, in fact, accurately described Niton's product line. Moreover, the RMD source code identified the RMD site as "Home Page of Niton Corporation, makers of the finest lead, radon, multi-element detectors..." Thus, when using Alta Vista and entering the search "home page of Niton Corporation" the last five of the eight matches returned were pages on RMD's web site.

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An evidentiary hearing was held on November 13, 1998 but was limited to the issue of whether RMD manufactured any radon testing equipment, as it advertised on its web site. Niton contended that although it manufactured such instruments, RMD did not. No oral testimony was offered concerning the copying of the metatags and source codes but the affidavit of Niton's webmaster was submitted. The court, relying exclusively on the evidence uncovered by Niton's webmaster and presented via that affidavit, found that Niton had a reasonable likelihood of success at trial of prevailing on its claim that RMD's web site and the "means of attracting users of the Internet to examine these web [pages] have been used by RMD in a way likely to" mislead those "attracted users." The court thus issued a "Preliminary Injunction Subject to Modification."

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The injunction enjoined RMD from using its web site in any way that might lead consumers to believe that RMD is Niton Corporation or affiliated with Niton or makes for Niton any products marketed by Niton or that RMD's web site is a Niton web site. Although not specifically stated, the court, in effect, ordered RMD to remove the copied metatags and other source code information that might mislead consumers.

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The injunction, however, is somewhat unusual because it is "subject to modification" by a showing of good cause for determining if an alternative form of relief might be more appropriate. Under the terms of the order, RMD could show good cause by demonstrating that it could modify its web site and source code so that it would not violate the terms of the order or that special reasons exist which allow RMD to proceed but also provide compensation or security to Niton.

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