Under Australian law there are three possible areas in which actions may be taken for improper use of meta-tags within a website. This paper will deal with each of these in turn. The first area of analysis is trade mark law. Australian trade mark law is governed by the Trade Marks Act 1995 . That is, trade mark infringement does not occur in Australia simply because a trade mark is used.
Infringement requires a trade mark to be used as a trade mark.
There are a series of Australian cases that have discussed the difference between the use of a trade mark as a trade mark and the use of a trade mark as a description. The basic law that can be drawn from these cases is that where a trade mark is used to indicate the trade source or origin of a particular good or service, then that trade mark is being used as a trade mark. On that basis under Australian law if a meta-tag operates to indicate the trade source or origin rather than as a description then it is probably being used as a trade mark. These Australian law principles would probably result in the same decisions in the Oppedahl , Playboy and Insituform cases. In all those cases the words were being used to indicate or draw a hit from the reputation of the plaintiff.