On July 11, 2013 the CJEU rules on C-657/11 case. The proceedings are focused on the request for a preliminary ruling from Belgian Court of Cassation concerning whether the term ‘advertising’ in Article 2 of Directive 84/450 and in Article 2 of Directive 2006/114 concerning misleading and comparative advertising must be interpreted as encompassing the registration and use of a domain name and, the use of metatags in a website’s metadata.

According to Article 2 [of Directive 84/450] and Article 2 [of Directive 2006/114] ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations.

This preliminary ruling arose within the BEST case on which Belgian Electronic Sorting Technology NNV brought proceedings against Visys NV and Mr. Peelaers alleging, inter alia, a breach of the rules concerning misleading and comparative advertising since defendants registered the domain name www.bestlasersorter.com and used plaintiff’s trademarks [Helius, Genius, LS9000] as metatags for its website.

In this regard, CJEU considers that the legal framework is aimed at every form of advertising event [including indirect forms of representation] and thus, the steps taken by a trader to promote the sale of his products or services that are capable of influencing the economic behavior of consumers and, therefore, of affecting the competitors of that trader, are subject to the rules of fair competition.

In light of the above, CJEU states that the mere registration of a domain name, such a purely formal act, does not in itself contain any advertising representation since does not necessarily imply that potential consumers can become aware of the domain name. However, the use of that domain name is clearly intended to promote the supply of the goods or services of the domain name holder and therefore constitutes a form of representation that is made to potential consumers and suggests to them that they will find, under that name, a website relating to those goods or services, or relating to that company.

Moreover, the use of metatags corresponding to the names of a competitor’s goods in a website’s metadata is considered as a form of representation under Article 2 [of Directive 84/450] and Article 2 [of Directive 2006/114] since the consequence that it is suggested to the internet user who enters one of those names as a search term is that that site is related to this search [the internet user may perceive that site as offering an alternative to the goods of the plaintiff’s company or think that it offers its goods].

Therefore, CJEU considers that the term ‘advertising’ in Article 2 of Directive 84/450 and in Article 2 of Directive 2006/114 concerning misleading and comparative advertising must be interpreted as encompassing the use of a domain name and that of metatags in a website’s metadata.