Use of URL unlawful towards competitor?
Recently the Supreme Court pronounced an important ruling about the issue whether the use of a domain name (URL) containing the name of a competitor is unlawful. According to the Supreme Court this is not always the case if this concerns a ‘purely descriptive designation’. Lawyer Robert van Ewijk discusses the recent ruling.
Claim in main action dismissed
Prae Artiestenverloningen BV (Prae) and Artiestenverloningen BV (Artiestenverloningen) are both companies dealing with payrolls for artists. Prae offers this with domain name Artiestenverloning.nl and Artiestenverloningen does this with Artiestenverloningen.nl. In preliminary relief proceedings Prae was sentenced to cease the use of Artiestenverloningen.nl. This ruling was confirmed on appeal and the court granted the claim by Artiestenverloningen in the main action, but this was dismissed on appeal.
Court of Appeal: domain name purely descriptive
According to the Court of Appeal, the designation artiestenverloning(en) [artists’ payroll] is purely descriptive, which means that there is no chance of confusion with the domain name or trade name of another party, and the use of the designation in the domain name is therefore not unlawful. This also applies if this disadvantages that other party. This can only be otherwise if there are serious additional circumstances, but deliberately choosing such a domain name is not such a circumstance.
Supreme Court: use of domain name is not unlawful
The Supreme Court considers that the right to a domain name is not regulated by law. Furthermore, any party can use an designation describing its services or products. That also applies to a domain name or trade name, and the Supreme Court refers to its ruling of 1987, where a similar case concerned the use of the trade name ‘Bouwmarkt’. Even if the use of such a domain name is likely to cause confusion, the use thereof is not automatically unlawful.
Lawyer for unlawful use of domain name
The Supreme Court therefore confirms the ruling of the Court of Appeal: Prae can continue the use of the domain name Artiestenverloningen.nl. However, the Supreme Court ruling does not mean that everyone can use any domain name whatsoever: the ruling only applies to a purely descriptive designation. Using another party’s (non-descriptive) trade name in a domain name can be unlawful under certain circumstances.