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Could use of a domain name be misleading advertising? In Europe, the answer is yes. Will Canada follow suit?

November 21, 2013

By Tamara Winegust and Catherine Lovrics

The European Court of Justice found domain names and metatags to be forms of advertising in Belgian Electronic Sorting Technology v Peelaers. Asked whether use of a domain name and metatags containing a company and product names constituted “misleading advertising,” the Court, and emphatically answered “YES.”

The Court found that since advertising can occur in “any form,” any steps taken by a party to promote sales of a product constitutes “advertising.” If those steps do or are likely to deceive, that advertisement is “misleading.”  The relevant Directives defined “advertising” as “a representation in any form… to promote the supply of goods or services,” “commercial communication” as “any form of communication designed to promote, directly or indirectly, the goods, services or image of a company …,” and “misleading advertising” as advertising that “deceives or is likely to deceive the person to whom [the advertisement] was addressed.”

The Court conceded the mere registration of a domain name is a formal act and not “advertising,” since it does not necessarily mean that potential consumers become aware of the domain name and that the domain name can influence the choice of potential consumers. However, creating a website that promotes goods or services does “advertise.” Metatags were similarly found to be “advertising,” since these indirectly help point consumers to a website by affecting the outcome of their online searches based on the entered search terms.

It remains to be seen whether Canadian courts will follow Europe’s lead, and find the misleading advertising provisions of the Competition Act, for example, are broad enough to apply to domain names, meta tags, and other online identifiers. 

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