Fairness Restrictions Applied to the Choice of a Domain Name?
Use of a domain name: is it a form of advertising?
Following the decision in Case C-657/11 (Belgian Electronic Sorting Technology BV v Bert Peelaers, Visys NV), the rules of fairness imposed by European Directives 84/450 and 2006/114 on misleading and comparative advertising will extend to cover not just the content of a web site, but the domain name at which it is registered as well. See our commentary here.
The Court rejected an attempt by Visys to distinguish between the website content and the domain name, noting that just as the website content is used to promote the business of the trader, the domain name is also used to drive traffic to the site and interest in its offer, and therefore the use of a given domain name – like the use of any given content – will constitute a form of “representation [made] in order to promote the supply of goods and services”. This, in turn, means that the use of a domain name will fall within the definition of “advertising” and would be subject to the same rules of fair competition.
A rule also exists in the (separate) Article 2(f) of Directive 2000/31, with the potential to exclude the use of a domain name from the definition of “commercial communication” under that Directive; but an argument by Visys based on that Article 2(f) was also rejected. The Court made clear (at paragraphs 49-50) that Article 2(f) did not restrict the definition of “advertising” under the Directives in question, as “advertising” was expressly defined to include “a representation in any form”. It also noted that Directive 2000/31 pursued separate objectives from, and was expressly stated to be without prejudice to, those Directives under consideration.
Mere registration of a domain name: is it a form of advertising?
The Court has ruled that it is not. Noting at paragraph 42 that registration 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 Court held that registration alone did not automatically imply that any website would be created; this in turn meant that such a purely formal act could not constitute a representation within the meaning of the advertising Directives under consideration.
The fact that registration of a domain name could deprive competitors of the opportunity to register the same one, even notwithstanding that one of those competitors might be the name’s more “rightful” owner, was not sufficient to promote the act of mere registration to an advertising representation within the meaning of the Directives. Other law (in the UK, for example, the One in a Million case) would remain in effect to prevent inappropriate registrations.