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< Contents ERCIM News No. 51, October 2002


by Heather Weaver

Metatags that cause Trademark Infringement
The UK has seen a recent landmark case that contains the first judicial analysis of trademark infringement where the use of the mark was made via metatags. Website owners rely on metatags to ensure that search engines bring visitors to their sites. The search engines use spider software to create indexes of catalogued websites by reviewing the sites' metatags for keywords. In some cases these metatags could include a trademark and website owners can use this as a method of redirecting internet users to their site. In order to establish trademark infringement, it is necessary to show that the infringing name or mark has been used 'in the course of trade'. This landmark case rules that despite the fact that these metatags are invisible to the website visitor they are visible when translated into a search result on the user's browser. This case provides further protection to registered trademark owners from other websites using their brands to attract visitors to their site.

Internet Sales - New Rules for EU Consumers
The Brussels Regulation, which came into force on 1 March 2002, introduced new rules for determining where claims arising from civil and commercial disputes involving parties from different countries can be heard within the EU. The rules apply to claims made by consumers arising out of sales of goods or services over the Internet.

Court proceedings must be brought within the Member State where the consumer lives. This right of jurisdiction cannot be waived even if the terms of the contract imply something else. Until now the contract must have been concluded while the consumer was in his or her Member State. The new regulation, however, introduces an additional jurisdiction that deals specifically with cross-boarder sales to consumers over the internet, where the trader "directs such activities to that Member State or to several Member States including that Member State". In other words, if a consumer from the UK purchases goods on the internet whilst on holiday in another Member State (eg France) he or she can bring a claim against the trader in France providing the trader "directed his activities" to the home State of the consumer (in this case, the UK).

Although this has not yet been tested in the courts it is likely to impact more heavily on traders who offer their goods or services in a number of languages and accept payment in different currencies, including the Euro. If traders wish to avoid claims in the future, they may have to consider accepting orders only from consumers residing in their own Member State and in the currency of that Member State. This is likely to impact on the value of trading on the internet. It will be interesting to see how case law develops in this area.

Please contact:
Heather Weaver, CLRC
Tel: +44 1 235 446151