- Articles 2(1) of Directive 84/450 and 2(a) of
Directive 2006/114 define advertising as a representation in any form made in
connection with a trade, business, craft or profession in order to promote the
supply of goods or services. That
particularly broad definition means that the forms which advertising may take
are very varied and that definition is not therefore limited to traditional
forms of advertising [it would be difficult to convince the CJEU that the definition should be restricted only to those forms of advertising that EU legislators knew about, says Merpel, given the open weave of the definition].
- The term ‘advertising’ cannot be interpreted and applied in
such a way that steps taken by a trader to promote the sale of his products or
services that are capable of influencing the economic behaviour of consumers
and, therefore, of affecting the competitors of that trader, are not subject to
the rules of fair competition imposed by those directives ["Capable of influencing the economic behaviour of consumers" is an important concept in modern EU law; it pervades EU trade mark law too. There's a sort of legal functionalism here: if a given act is capable of influencing consumer behaviour, then it must be covered by one piece of EU legislation or another].
- The registration of a domain name is nothing other than a formal act by which the body designated to manage domain names is asked to enter, in exchange for payment, that domain name into its database and link internet users who type in that domain name only to the IP address specified by the domain name holder. The mere registration of a domain name does not automatically mean, however, that it will then actually be used to create a website and that, consequently, it will be possible for internet users to become aware of that domain name. Such a purely formal act which, in itself, does not necessarily imply that potential consumers can become aware of the domain name and which is therefore not capable of influencing the choice of those potential consumers, cannot be considered to constitute a representation made in order to promote the supply of goods or services of the domain name holder [this is much the same as registration of a company name: if the company is registered but does not trade, and consumers do not get to know of it, relief based on influence upon consumer behaviour will be hard to obtain].
- It is irrelevant that the registration of a domain name has
the consequence of depriving competitors of the opportunity to register and use
that domain name for their own sites. However, the mere registration of such a
domain name does not in itself contain any advertising representation, but
constitutes, at most, a restriction on the communication opportunities of that
competitor, which may, where appropriate, be penalised under other legal
- In contrast, the use of a domain name, which makes reference
to certain goods or services or to the trade name of a company, 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. A domain name may, moreover, be
composed, partially or entirely, of laudatory terms or be perceived, as such,
as promoting the goods and service to which that name refers.
- The exclusion, provided for in Article 2(f) of Directive
2000/31 [the E-Commerce Directive], of certain information and communications from the definition of
commercial communication does not mean that that information and those
communications are also excluded from the concept of ‘advertising’ within the meaning
of Article 2(1) of Directive 84/450 and Article 2(a) of Directive 2006/114,
that concept being defined by expressly including any form of representation.
- With regard to the use of metatags in a website’s metadata, such
metatags consisting of keywords, which are read by search engines when they
scan the internet to carry out referencing of the many sites there, constitute
one of the factors enabling those engines to rank sites according to their
relevance to the search term entered by the internet user. Accordingly, the use
of such tags corresponding to the names of a competitor’s goods and its trade
name will, in general, have the effect that, when an internet user looking for
the goods of that competitor enters one of these names or that trade name in a
search engine, the natural result displayed by it will be changed to the
advantage of the user of those metatags and the link to its website will be
included in the list of those results, in some cases directly next to the link
to that competitor’s website. In the majority of cases, an internet user entering the name
of a company’s product or that company’s name as a search term is looking for
information or offers on that specific product or that company and its range of
products. Accordingly, when links to sites offering the goods of a competitor
of that company are displayed, in the list of natural results, the internet
user may perceive those links as offering an alternative to the goods of that
company or think that they lead to sites offering its goods. This is
particularly the case when the links to the website of that company’s competitor are among the first search results, close to those
of that company, or when the competitor uses a domain name that refers to the
trade name of that company or the name of one of its products [the implication being that this may influence the consumer's behaviour].
- [And, spelling things out for the avoidance of doubt] So far as the use of metatags corresponding to the names of a competitor’s goods and its trade name in the programming code of a website has the consequence that it is suggested to the internet user who enters one of those names or that trade name as a search term that that site is related to his search, such use must be considered as a form of representation within the meaning of Article 2(1) of Directive 84/450 and Article 2(a) of Directive 2006/114. The concept of advertising expressly encompasses any form of representation, and therefore including indirect forms of representation, particularly where they are capable of influencing the economic behaviour of consumers and, therefore, of affecting the competitor whose name or goods are referred to by the metatags.
The enemy of the Best here and, per Voltaire, here