Keying and metatag use of DOUWE EGBERTS mark allowed

Netherlands

The District Court of Middelburg in the Netherlands has ruled that a distributor of Douwe Egberts coffee products was not infringing Douwe Egberts's rights by using the DOUWE EGBERTS mark (i) as a keyword to trigger advertisements for its products on search engine sites, and (ii) in the metatags of its website (Case 242/2005, January 18 2005).

Douwe Egberts, which is part of the Sara Lee group, produces, distributes and sells, among other things, coffee and tea products. Capriole Coffee-Service is one of Douwe Egberts's non-exclusive distributors within the Netherlands. Douwe Egberts filed a claim with the District Court of Middelburg, stating that Capriole had infringed Douwe Egberts's trademarks because it was using the trademark DOUWE EGBERTS as a metatag in the source code of the websites at 'capriole.nl', 'capriole.be' and 'koffieautomaten.nl'. Capriole also used the mark as a keyword to trigger advertisements for its products on search engine sites such as Google, Lycos and Altavista.

The court dismissed the claim, holding that Capriole was not infringing Douwe Egberts's trademarks. It first noted that Douwe Egberts had not objected to Capriole's use of the trademark DOUWE EGBERTS in its other advertising activities and on its websites. According to the court the use of the mark by Capriole for sponsored links and metatags did not essentially differ from the other ways in which Capriole gave information on and advertised the products of Douwe Egberts. The use of the mark as a keyword or in metatags meant that when an internet user entered the search term 'Douwe Egberts' into a search engine, he would find Capriole's web page more easily than if he had not used this search term. The court stated that an internet user would not expect to find only Douwe Egberts's own web pages following use of the search term 'Douwe Egberts'. According to the court, Douwe Egberts's web pages were no less accessible than they were before Capriole used the metatags and sponsored links at issue. Capriole was simply profiting from the fact that some search engines placed its website listing higher on the search results page than other listings. This, in itself, did not infringe the rights of anyone else who had decided not to use this method.

Aleid de Savornin Lohman, Allen & Overy LLP, Amsterdam

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