The Court of Justice ruled that the use of a meta tag or a domain name is part of the concept of advertising . The statement may seem obvious but it is not so .
The sticky point is that meta tags are hidden words which, as such , are not immediately perceived by the consumer as is for other forms of promotion .
In the case of Belgian Electronic Sorting Technology NV and another v Peelaers Case C-657/11 the Court ruled that the fact that they are not visible does not detect because the use of metatags consists in «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» and as such fall within the concept of advertising .
This means that using as metatags the mark of a competitor can be considered unlawful and misleading advertising under Community legislation.
The Court has included within the concept of advertising also the domain name but stated that using a certain domain can be misleading only if the domain is used and not if it is registered only. It is only through the website that a competitor can reach consumers and thus affect their choices.
The Court therefore concluded that the term ” advertising” in Article 2 of Directive 84/450/EEC on misleading advertising and Article 2 of Directive 2006/114/EC concerning misleading and comparative advertising must be interpreted as meaning that it includes both the use of a domain name is the use of ” metatags ” with all its consequences.
The concept of advertising is very large in two Directives and may well also include the meta tags and the domain name . The consequence is that we must be particularly careful in their use as there is the risk of being held responsible for acts of unfair competition or trademark infringement if it violates the rights of third parties.
The Court states that the definition of “advertising” in the Directive is broad and that “advertising” in Article 2 of Council Directive 84/450/EEC concerning misleading advertising and in Article 2 of Directive 2006/114/EC concerning misleading and comparative advertising is to be interpreted as encompassing, on the one hand, the use of a domain name and, on the other, the use of metatags in a website’s metadata.