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"Any new company advertising its wares on the internet needs people to visit its website. People are more likely to do this if the website appears in the first page of results generated by their search-engine. Fortunately, search-engine results can be influenced. Websites should have a distinctive name, and the computer code running the website should contain 'metatags' – words which, although invisible to the internet user, are 'read' and processed by search-engines when compiling the list of search-results. In this context, metatags might refer to the company's products or services.
The blindness of website technology permits a couple of less obvious ways to improve the position of a company's website in the search results: one is to include the name of a rival company in the website's domain-name; another is to mention the rival's products in the metatags. Search-engines looking for the rival company and its products will invariably pick up on the new company's website.
But is this use of technology legal under EU law? More particularly, should EU law not stamp out this behaviour by viewing this use of a domain name and the metatags as some novel form of misleading advertising contrary to Council Directives 84/450 and 2006/114?
In essence, this was question asked of the CJEU by the Belgian Court of Cassation in Case C-657/11 Belgian Electronic Sorting Technology, the facts of which are reported here and here. It was a question that clearly concerned many in the EU. Written submissions were made to the CJEU by Belgium, Estonia, Italy, Poland and the EU Commission and, when the Court hearing took place in January 2013, oral submissions were made by both the EU Commission and Belgium.
Last week, Advocate General Mengozzi proposed [in an Opinion that has been posted on Curia in 19 official EU languages, including Maltese, but not English, as a Grumpy IPKat observes] that the CJEU answer the Belgian Court's question in this way (unofficial translation):
1. The registration of a domain name is not advertising within the meaning of Article 2 of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising and of Article 2 of Directive 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising.
2. The use of a domain name and the use of metatags in the source code of a website can constitute advertising within the meaning of those Directives. It is left to the referring court to determine whether the conditions relating to the definition of advertising in these Directives are fulfilled.Advocate General Mengozzi has taken a particularly broad view of advertising that also covers distribution. His Opinion gets around the problem that the various language versions of the Directives defining 'advertising' do not match; and he does this by stating that the key issue is whether there is a 'communication'.
In an overt nod to 1940s communication theory literature, he decided there were six criteria to a communication and these could be applied to decide whether EU law's definition of advertising should cover (i) the registration of a domain name, (ii) whether a domain name could be used as advertising and (iii), whether metatags constituted advertising.
Basically, he thought that registering a domain name did not constitute advertising since the act of registration was but a mere formality and did not encourage the supply of goods and services. However, the use of a domain name might constitute advertising since putting a website online that was linked to a domain name could lead to the distribution of communications. And if that occurred in the context of exercising an economic activity which promoted the supply of goods or services, then this, he opined, would constitute advertising within the meaning of the EU's Directives.
As to whether metatags were advertising, this was not so straightforward; metatags were not visible to users of the internet. However, metatags were incorporated into websites in order to influence the search results which appeared on a user's screen. Thus, if the metatags were incorporated in the source code of a webpage in the pursuit of economic activity to promote the supply of goods or services, this too could constitute a form of advertising for the purposes of the EU’s advertising law Directives. Nevertheless, Mengozzi AG advised the CJEU to leave it to the referring court to determine whether this was indeed the case on the facts before it.
Advocate General Mengozzi's Opinion might persuade the Third Chamber of the CJEU to develop EU advertising law in the way he proposed. After all, he has viewed the technology underpinning websites in ways that will stymie technicians and those lawyers who are accustomed to reading the wording of the EU's legislation.
But the eventual judgment in Case C-657/11 Belgian Electronic Sorting Technology may well interest EU trade mark and copyright lawyers alike if it turns on the indirect communication of information to members of the public. EU trade mark lawyers will eagerly watch out for any evolution in the relationship between the mention of trade marked products and advertising laws. But EU copyright lawyers might look out for the eventual judgment too. They already know that the CJEU has two references in its 'In-Tray' concerning where EU law's boundaries should be set in respect of people using search-engines to access the database of a website (Case C-202/12 Innoweb reported here and here), and search-engines sending people web-page hyperlinks (Case C-466/12 Svensson reported here)".Shortlived Bests here and here
First Best or second-best here