Recent News from Intellectual Property and Competition Law

European Court of Justice: Unfair Competition by Using a Domain Name

According to the judgement of the European Court of Justice dated 11 July 2013, the term "advertising" as defined in the European guidelines also comprises the use of "domain names". This means that especially domains (in the present case "") which are intended to promote the sale of goods or rendering services must live up to the standards of misleading and comparative advertising and may violate the law against unfair competition.

The decision is based on the following facts:

The Plaintiff "BEST" and the Defendant "Visys" are competitors, inter alia, in the distribution of sorting machines equipped with laser technology. Among other things, the Defendant had secured the domain "" and used it for its website.

In that respect, the European Court of Justice held that the use of a "carefully chosen" domain name "is intended to encourage the greatest possible number of internet users to visit that site and to take an interest in its offer." This, in turn, is an act of advertising. At the same time, the European Court of Justice held that only the use and not merely the registration of a domain name may be prohibited under law on competition.

The European Court of Justice further made clear in its decision that even the use of "keywordmetatags" is an act of advertising which may influence the behaviour of consumers if it is focused on the products of a competitor and may thus have a negative impact on competition.

Practical recommendations:

It has always been advised to act with caution when selecting domain names and metatags. With the present decision, the European Court of Justice has confirmed that this is also applicable with a view to possible unfair competition. This should give users cause to take a careful look at their own advertising, but also to take action against possible violations of third parties with enhanced confidence.

Please contact the lawyers of the area of Intellectual Property / Competition Law for further information.

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