Who: Belgian Electronic Sorting Technology NV v Bert Peelaers, Visys NV
Where: Court of Justice of the European Union (CJEU)
When: 11 July 2013
Law stated as at: 5 August 2013
What happened:
The CJEU ruled on the interpretation of the word “advertising” in the context of the Misleading and Comparative Advertising Directive (Directive 2006/114 and its predecessor Directive 84/450) (“MCAD”). In particular, the referring court in Belgium had asked the CJEU to clarify whether “advertising” for these purposes includes: (a) registration and use of a domain name; and/or (b) use of metatags referring to a competitor and its products.
The case had been brought by Belgian Electronic Sorting Technology NV (also known as “BEST NV”) against Visys NV. Visys had registered and used the domain name “www.bestlasersorter.com”. It had also used BEST’s name and various of BEST’s product names as metatags within Visys’s website.
The CJEU ruled that:
(A) Mere registration of a domain name is not “advertising” for these purposes. It is “a purely formal act which, in itself, does not necessarily imply that potential consumers can become aware of the domain name” and accordingly does not amount to an advertising representation.
(B) On the other hand, use of a domain name in a situation like this would count as “advertising”. In this case, the domain www.bestlasersorter.com could be seen either as a representation that the products on the site are BEST products or as laudatory of the products on the site – but either way it amounts to an advertising representation.
(C) Metatags used in a website’s metadata will also be “advertising” in a situation like this. Even though they are not directly visible to the end user, they will tend to affect natural search results in Google and other search engines. Competitor brands used as metatags should accordingly be treated as an indirect representation, and hence advertising, if they cause natural search results arising from entering one of those brands as a search term to suggest to an internet user that the site “is related to his search”.
Why this matters:
The ruling would appear to make it more risky, going forward, to use competitor brands as metatags. If metatag usage is “advertising”, then it would appear to be “comparative advertising” as defined in MCAD (“any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor”). On that basis, it would need to meet the Directive’s requirements in order to be permitted – including the requirement to compare objectively “one or more material, relevant, verifiable and representative features” of a product. It is hard to see how that requirement could be met in the context of a metatag.
As for using competitor brands in actively used domain names, this would only seem to be permissible if the domain name itself amounts to a lawful comparative claim under the Directive (presumably with the verifiability requirement satisfied through information provided on the domain’s landing page).
Finally, an intriguing possibility – with metatags capable of being “advertising” for MCAD purposes, could we also now start to see the ASA ruling on metatag issues?
The CJEU judgment in Case C-657/11 Belgian Electronic Sorting Technology NV v Peelaers and another can be found here.
