Recently Titan sued Lenskart on account of its website code that carried metatags with the potential to influence search engine results. We have heard about misleading taglines or comparative advertising. Here the issue is metatags hidden in keywords embedded in the HTML of a webpage. These are invisible to consumers, but they help search engines decide which pages to show up whenever there is a search by someone for a particular brand.
Titan discovered that Lenskart had embedded its trademarks — Titan, Titan Eye + and Fastrack — into its own metatags. The argument of Titan was that this could unfairly divert consumer traffic. Lenskart pleaded inadvertence and removed the tags. That resulted into the closure of the case.
Brands are fighting for consumer attention. This case invited a larger discussion. The issue is how fair it is to use the rival brand names to gain online visibility in this competitive world. It could damage the equity of the aggressor and his brand. Is there any role for regulators such as ASCI?
The practice is a red flag for brand’s marketing. One off case can be ignored, but repeated lapses risk the erosion of reputation.
Courts urge brands to tread carefully in how they compete online. The use of competitor’s trade names involving Google Adwords do come up before the courts, e.g. MakeMyTrip vs. Booking.com, and the Agrawal Packers & Movers case. The courts have backed the protection of registered trademarks.
The battle for attention is fought for digital-first brands in terms of milliseconds on Google search. The promotional strategy decides the line between smart strategy and overreach.
ASCI discourages brands from unfairly using another company’s name. It violates the fairness in competition and gives unfair advantage. ASCI’s remit does not extend to backend technologies such as SEO and metatag manipulation. ASCI code is for advertising consent. In the age of digital advertising, what constitutes advertising has changed. At present, these are not within ASCI’s remit.
Though these are invisible practices, the impact is real. It can qualify as trademark infringement under Section 29 of the Trademarks Act, 1999. A more concrete form can be given to these legal pronouncements by amending existing laws which define such digital practices.
Leave a Reply