Trademark infringement and unfair competition by use of meta-tags
Meta-tags are tags containing information about the nature and content of a web page, placed in its source code and invisible when the page is read (except the title that is visible above the address bar).They are used as keywords by the search engines to index the web page. It is therefore very important to register relevant meta-tags of each page (title and description) because this plays a decisive role in the referencing of the site.
On January 17, 2017, the TGI of Lyon condemned DECATHLON for trademark infringement and unfair competition for having used the trademark of a third party, INUKA, as a meta-tag on its website.
The judges considered that if, as a matter of principle, the use of a sign as a meta-tag not visible to the user can not constitute an act of counterfeiting, the situation is different when the meta-tag information is visible. In the present case, the act of infringement was retained when the results were visible to Internet users and the titles were intended to guide their economic behavior.
The tag description was "wide choice of inuka on decathlon.com". While the consumer was looking for INUKA brand products on the Google search engine, it was directed to pages on the decathlon.fr website that were supposed to allow him to buy Inuka products but finally offered him other products.
The TGI of Lyon therefore relied on the criterion of the visibility of the trademark in order to define whether the act of infringement was characterized. This decision is in line with the "Google AdWords" case law (judgments of 23 March 2010 of the CJEU which make it possible to use the mark of a competitor as a key word but provided that it is not used In the body of the advertisement ...).
It is interesting to note that about three years ago, the Court of Appeal of Paris did not follow this logic: Aff. STEELNOVEL (19 March 2014), where the judges considered that the use of a trademark as a meta-tag that a competitor had inserted on its website constituted an act of infringement, even if the mark is not visible for the Internet user ...
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