Analyzing a potentially infringing website’s html and metadata can reveal the proof of misuse. Analyzing this hidden text can serve as a powerful aid in the determination of how infringement has occurred on the Internet and social media. Internet infringement, unlike misuse on a billboard or TV, may not be visually obvious to users. The challenge in presenting a defensible case that a client’s competitor is guilty of IP infringement or misuse is to provide persuasive evidence that such infringement was deliberate and strategic rather than accidental. Although it is not likely that someone would use a famous person’s image by mistake, sometimes determining intentional use requires a little more investigation.
Take, for example, the case of two competing companies, here called “Plaintiff” and “Defendant,” which had operated in nonoverlapping geographies for many years. However, as both businesses evolved into offering online retail distribution and services, their businesses began to overlap and compete for customers outside their home geography. Analyzing the site’s html and metadata assisted in investigation of how the trademark was misused.