|"Le mieux est l'ennemi |
du bien" - Voltaire
Last Wednesday this weblog reported on one of the latest cases in which a national court in Europe decided to stay the proceedings before it and refer some questions to the Court of Justice of the European Union for a preliminary ruling --Case C-657/11, Belgian Electronic Sorting Technology, a reference from the Hof van Cassatie van Belgie. Not knowing anything about the facts of the original dispute, the Kat appealed to readers to help him out. First to respond was Stephen Vousden, with a very full and helpful description of the background to the dispute. Explains Stephen:
"The parties in the case each design, make and sell sorting-machines which use laser technology. The claimant company, Belgian Electronic Sorting Technology, was set up in 1996. Its various machines were named: Helius, Genius, LS9000, and Argus. In 2008, it also registered the word BEST as a Benelux trade mark.
The defendant company was set up in 2004 and in 2007 registered the domain name www.bestlasersorter.com . The content of the website, together with that of www.bestlaser.com was identical to the content found on the defendant company's more usual websites of www.visys.be and www.visysglobal.be . In the metadata of the defendants' websites were the words 'Heliussorter, LS9000, Geniussorter, Best+helius, Best+genius, ... Best nv,' - words which refer back to the claimant's identity and products.For the sake of completeness, Stephen has also told the Kats that the Belgian courts revoked the claimant's Benelux trade mark registration of the word mark BEST for lack of distinctive character.
The claimant sued the defendants for misleading advertising contrary to the 1991 Belgian Trade Practices Act [Handelspraktijkenwet], and this was the matter which gave rise to the reference to the CJEU. Article 93(3) of the Belgian Trade Practices Act defines 'advertising' as 'any representation which directly or indirectly aims to encourage the sale of products or services irrespective of the place or the means of communication used'. This provision of Belgian law is to be interpreted in accordance with Articles 1 and 2 of Directive 2006/114/EC that define the concepts of 'advertising', 'misleading advertising' and 'comparative advertising'.
According to the appellate judges, neither the registration nor the use of a domain name constituted 'advertising' for the purposes of the Belgian Act for there was no 'representation'. The same reasoning applies to the metatags in the website metadata. A metatag is only ever a term incorporated into the programming language of a website that is recognised by a search engine. Metatags remain invisible to the user. A metatag is thus only a technical means of assistance that increases the chance of a website being displayed in the results of a search engine when searching for a specific word.
The question therefore arises of whether the term ‘advertising’ in Article 2 of Council Directive 84/450 ... relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising and in Article 2 of Directive 2006/114 ... concerning misleading and comparative advertising to be interpreted as encompassing, on the one hand, the registration and use of a domain name and, on the other, the use of metatags in a website’s metadata?".
A kat-pat goes to Stephen for his kind assistance. Kat-pats also go to Nathan Waijsman and Jasper Groot Koerkamp for their contributions to this Kat's understanding.
The good is the enemy of the best here
The best is the enemy of the good here