Trade Mark Infringement on the Internet
A British Court has recently ordered the computer company Mandata to pay damages and costs in the substantial sum of £80 000.00 to its competitor.
A British Court has recently ordered the computer company Mandata to pay damages and costs in the substantial sum of £80 000.00 to its competitor Road Tech Computer Systems ("Road Tech") as a result of its exploitation of Road Tech´s trade mark on the Internet.
Mandata included a trade mark of Road Tech in its metatags (keywords used to flag down search engines) and in hidden text in the first page of its website. This technique diverted traffic from Road Tech´s website. The court held that such behavior was a blatant and unsophisticated infringement of Road Tech´s intellectual property rights. In essence, the court´s decision makes the use of a rival´s trade mark in metatags on the Internet for the sole purpose of attracting Internet users from the rival company´s website, an infringement of that trade mark.
In this instance Mandata admitted to the infringement. The court´s ruling, the first decision of its kind in the United Kingdom, suggests that the United Kingdom is likely to follow the same attitude adopted by the courts in the United States of America, which view with disfavour the use of competitors trade marks in metatags on the Internet.
With increasing use of the Internet in South Africa, situations similar to the one which arose in the United Kingdom case may occur here. Our Courts are likely to consider foreign decisions such as those in the United Kingdom and the United States of America when dealing with such cases. The unauthorised use in South Africa of a rival´s trade mark on the Internet with the intention of poaching Internet users away from a rival´s website is likely to amount to trade mark infringement as well as unlawful competition.
(Acknowledgement to 2 June Financial Time's).