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Linking, Framing, and Metatags
Overview
Linking Cases
Framing Cases
Metatagging Cases
Background Notes

Overview

Linking sets the Internet apart from all other forms of media. Although no linking - related litigation has yet challenged the so-called "fundamental" right to link, the explosive growth of e-commerce and the continued reliance, at least in part, on "eyeball" driven revenue means that links, linking methods, and metatags will continue to spawn lawsuits. To date, such lawsuits have usually resulted in settlements removing "deeplinks" or "frames" and enjoining the use of trademarks as metatags, unless its a "fair use." Regardless of the specific method or practice called into question, at the core of these cases is the issue of control - how a web site is accessed and by whom, and the extent to which a web site's content, even its invisible tags, can be protected.

For a more detailed discussion of this topic see our Background Notes.

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Linking Cases

Shetland Times, Ltd. v. Jonathan Wills and Another, 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996

Considered the first "linking" case, the issue presented in Shetland Times was whether the Shetland News's ("News") "deeplink" to embedded pages of the Shetland Times's("Times")web site, through the use of Times' web site's news headlines, was an act of copyright infringement under British law. The matter settled on the day of trial, shortly after the court had issued a preliminary injunction precluding the deeplink. Although much discussed, this opinion has proved to be of little legal signifigance, in part because of the extremely low evidentiary standard applied by the court.

For further information about this case see our in-depth analysis.

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Ticketmaster v. Microsoft, United States District Court for the Central District of California, Civil Action Number 97-3055DPP

This case is somewhat similar to the Shetland Times dispute in that Ticketmaster sought to preclude Microsoft's unwanted "deeplink," claiming that the practice infringes on Ticketmaster's trademark, dilutes the mark's value and violated state and federal laws of unfair competition. Although widely reported, this lawsuit resulted in no substantive rulings by the court and was settled in February 1999. Although the terms of the settlement agreement remain confidential, Microsoft agreed to remove its "deeplink" and instead link only through Ticketmaster's home page.

For further information about this case see our in-depth analysis.

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Nottinghamshire County Council v. Gwatkin, (High Court of Justice, Chancery Division, June 3, 1997)

The Gwatkin case, another matter before the British courts, highlights the sometimes insurmountable problems even a successful litigant can experience in attempting to enforce an order intended to preclude further infringement by publishing and then linking to copyrighted materials posted on the Internet.

For further information about this case see our in-depth analysis.

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Framing Cases

The Washington Post, et als. v. TotalNews, Inc., et als., Southern District of New York, Civil Action Number 97-1190.

In this case, the Washington Post and other news services sought to preclude the defendant online news service from "framing" their web sites and web sites' content. The plaintiffs claimed that the act of "framing" infringed, diluted and misappropriated their copyrighted materials. The matter settled out of court with teh defendant agreeing to remove its frame and the plaintiffs allowing access to their web sites by simple hypertext link.

For further information about this case see our in-depth analysis.

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Metatagging Cases

Playboy Enterprises, Inc. v. Calvin Designer Label, 985 F.Supp. 2d 1220 (N.D. Cal. 1997)

This is one of the first cases involving metatags that was not resolved by settlement before a judge was allowed to rule on the likelihood of success of an infringement claim based at least in part on the use of plaintiff's trademarks in the defendant's web site metatags. Although the court granted the plaintiff's request for a preliminary injunction precluding the use of the plaintiff's marks as metatags, the issue was decided without any opposition by the defendants.

For further information about this case see our in-depth analysis.

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Insituform Technologies, Inc v. National Envirotech Group, LLC, United States District Court for the Eastern District of Louisiana, Civil Action Number 97-2064.

In this action, the plaintiff, Insituform Technologies, Inc., filed suit over the defendant's use of the plaintiff's federally registered trademarks in its metatags and the posting of the plaintiff's marketing materials on the defendant's web site, without consent or attribution. Although the defendant denied any wrongdoing, shortly after its answer was filed the parties entered into a consent judgment under which the metatags were removed and the marketing materials taken down.

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Oppedahl & Larson v. Advanced Concepts, United States District Court for the District of Colorado, Civil Action Number 97-CV-1592

The plaintiff patent law firm filed suit against five defendants, claiming that the defendants' use of the plaintiff's marks as metatags infringed and diluted the value of those marks. After answers were filed, the case settled through various agreements and stipulations which precluded further use of the plaintiff's marks by the defendants.

For further information about this case see our in-depth analysis.

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Playboy Enterprises, Inc. v. Terri Welles, 7 F.Supp. 2d 1098 (S.D. Cal. 1998)

Although factually unique, this is the only known case where the defendant in a metatagging suit has prevailed. In this case, Playboy Enterprises, Inc. ("PEI") sued 1981 Playmate of the Year, Terri Welles, claiming that Welles' use of certain of PEI's trademarks as metatags and as a watermark on her web site infringed on, and diluted, those marks. PEI's motion for a preliminary injunction was denied as the court found that Welles' use of PEI's marks was a fair use that did not mislead or confuse the public.

For further information about this case see our in-depth analysis.

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

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.

For further discussion of this case see our in-depth analysis.

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