Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: A/11/00031
    • Lidstaat: België
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 14/03/2011
    • Gerecht: Hof van Beroep (Gent)
    • Onderwerp:
    • Eiser: Stokota
    • Verweerder: Vervetank
    • Trefwoorden: attributes of the trader, confusing marketing, confusion, false impression, identity of the trader, misleading advertising
  • Richtlijnartikelen
    Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (f)
  • Koptekst
    Constitutes misleading advertising, including metadata, which are false or inaccurate, in a trader's website to influence the search result provided by search engines after entering certain keywords, in order to create an impression that the trader is a sales department of a competing trader.
  • Feiten
    The defendant was active as agent of the plaintiff until 31 December 2009. After this date the defendant had to comply with a noncompeting obligation towards the plaintiff for a period of 6 months. However, after entering the keyword "STOKOTA" in internet search engines such as Google, Yahoo and Bing, the fifth result indicated that the defendant was a sales department of the plaintiff.

    Plaintiff provided a search result which showed that the keyword appeared as a metadata underlying the website. More specifically the indication "sales department group STOKOTAIEKW" was used. Furthermore, on the website of the defendant under the heading "Construction of new tanks", pictures of 56 tanks (produced by the plaintiff) were displayed together with a note below pictures stating that these were produced by the plaintiff or EKW (production unit of the plaintiff). Finally, during negotiations with third parties, the defendant presented itself as being a sales department of the plaintiff.



    The plaintiff further argued that the defendant engaged in a misleading advertising and unfair commercial practices, since the practice of the defendant caused confusion among consumers (its potential customers). Plaintiff demanded to cease all such practices, remove all material elements which refer or may refer to the plaintiff (including the references on defendant's website, the pictures with the tanks produced by plaintiff, and all promotional messages), and to refrain from presenting itself as a sales department of the plaintiff when in direct contact with consumers.

  • Juridische kwestie
    Is it a misleading advertising, to include metadata, which are false or inaccurate, in a trader's website to influence the search result provided by search engines after entering certain keywords, in order to create an impression that the trader is a sales department of a competing trader?
  • Uitspraak

    In its reasoning, the court established that the use of pictures by the defendant of tanks produced by the plaintiff with the aim to promote its own production unit, constitutes an unfair commercial practice pursuant to the Article 96 of the Belgian Act on market practices and consumer protection. The use of the information by the defendant was considered to be capable of misleading an average consumer to whom the information was intended to. Such information could therefore influence the economic behaviour of a consumer visiting the website.



    The explicit storing of metadata together with defendant's own data which entailed a referral to the alleged fact that the defendant is a sales department of the plaintiff was found to be a misleading advertising according to article 96 of the Belgian Act on market practices and consumer protection. When searching the term "STOKOTA", consumers were provided a link to the defendant's website (in its alleged capacity of a sales department of the plaintiff). This did not match with the reality and therefore misled the consumers.



    The court further held, that regardless of the fact that the defendant cannot influence the place or ranking in a search results, when entering the keyword "STOKOTA", the defendant had nevertheless the possibility to delete the metadata (which influences the search result). The court concluded that the plaintiff's request regarding to the use of the metadata and the pictures was well-founded and issued a cease and desist order.



    The other claims of the plaintiff (that the defendant presented itself as a sales department of the plaintiff and that the defendant has taken plaintiff's clientele during the noncompeting period) were not sufficiently proven by the plaintiff and were therefore dismissed.

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat
    Defendant was found guilty of misleading advertising; regarding the claim of unfair commercial practices however the court ruled that this was not sufficiently proven by plaintiff.