When is the use of a competitor's name as a metatag ‘advertising’?

By Timothy Pinto

The parties in this case are competitors, making and distributing laser technology sorting machines. The claimant was Belgian Electronic Sorting Technology NV (also known as BEST NV). Its machines were named Helius, Genius and LS9000, for example. The defendant, Visys NV, registered the domain name bestlasersorter.com and linked the resulting URL to its website, www.visys.be. Visys used the following metatags for search-engine-optimisation purposes: Helius sorter, LS9000, Genius sorter, Best+Helius, Best+Genius and Best nv.

BEST sued Visys in Belgium for trademark infringement and breach of the misleading and comparative advertising and domain-name registration laws. The Court of Justice was asked whether the registration or use in a domain name and/or the use in a metatag fell within the definition of ‘advertising’ in the directives on misleading and comparative advertising.

The definition of ‘advertising’ is ‘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…

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