On December 18, 2015, the Federal Court of Appeal (FCA) delivered its judgment in Red Label Vacations Inc (Redtag.ca) v 411 Travel Buys Limited (2015 FCA 290), in which the FCA panel dismissed the appeal of a decision in which Redtag.ca had unsuccessfully alleged copyright and trademark infringement based on a competitor’s unauthorized use of the metatags contained in the source code of their websites. The judgment leaves many questions unanswered regarding the application of copyright and trademark law to the unauthorized use of metatags.

The trial judge found that there was little evidence of any sufficient degree of skill and judgment used to create Redtag.ca’s metatags, but that metatags may attract copyright protection in some cases. The FCA stated that this was a finding of fact, and that Redtag.ca had failed to establish that the trial judge made any palpable and overriding error in making this finding. While it remains possible that some metatags may attract copyright protection in Canada, a copyright infringement claim based on unauthorized use of metatags has yet to succeed in a Canadian court.

Likewise, the FCA has left open the possibility that unauthorized use of metatags may constitute trademark infringement. In the current case, the FCA refused to interfere with the trial judge’s finding that 411 Travel Buys Limited did not use Redtag.ca’s trademarks for the purpose of distinguishing or identifying its services in connection with Redtag.ca’s services.

Summary By: David Bowden

E-TIPS® ISSUE

16 01 27

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