Can you infringe a trademark with your SEO tag-lines?

Trademark infringement

SEO (Search Engine Optimization) tag-lines are used by companies to become more visible to customers searching for their services online. The courts have recently considered this question. The company Lift Shop Pty Ltd, which supplies elevators, registered a trademark featuring the phrase “lift shop”. Another elevator supply company Easy Living Home Elevators Pty Ltd, in order to appear more prominently in search engine results, added the phrase “lift shop” to their tagline.

Trademark “use” only applies if the mark is a “badge of origin” distinguishing one trader’s goods from another. In this case “lift shop” denoted the character of the business. The words did not try to distinguish Easy Living’s business from any other similar businesses. Therefore there was held to be no trademark use and no infringement.

This case highlights that despite using the same keyword as a registered trademark, if it is used merely in a descriptive sense there will be no trademark infringement. However, there is still the potential for trademark infringement if the keyword were less descriptive. When putting together tag lines for SEO, trademarks of competitors must be considered.