Article 6 1. (c)
||National ID||Voorz. Kh. Antwerpen 18 October 2011|
|Common name||Voorz. Kh. Antwerpen 18 October 2011||Decision type||Court decision, first degree|
|Court||Voorz. Kh. Antwerpen||Plaintiff(s)||Vereniging van Vlaamse Reisbureaus VZW|
|Court translation||President of the Commercial Court Antwerp||Defendant(s)||EBooker.NL BV|
|Subject||misleading commercial practices|
|Keywords||identity of the trader, material information, misleading omissions, trader, travel|
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(1) Constitutes a misleading practice claiming on the trader's website that the trader has an establishment in a country where it actively advertises its services to consumers, whereas in reality the trader has no such establishment in this country.
(2) The mere use by a trader of a country top level domain extension for its website does not constitute a misleading commercial practice, where the trader has no establishment in the country to which the domain name extension refers.
Defendant offers online flights, accommodation services and travel packages on its website www.ebookers.nl and www.ebookers.be. On the website of the defendant, it was stated that the defendant was active in Belgium with an own establishment under the name ebookers.be.
Plaintiff is a corporate association with more than 600 members of the travelling sector. Plaintiff filed a complaint against the defendant and demanded the ceasing of all activities in Belgium, due to the infringement of several legal provisions applicable in Belgium. It was amongst others stated by the plaintiff that defendant unlawfully stated on its website that it has a Belgian establishment.
(1) Does it constitute a misleading practice to claim on the trader's website that the trader has an establishment in a country where it actively advertises its services to consumers, whereas in reality the trader has no such establishment in this country?
(2) Does the mere use by a trader of a country top level domain extension for its website, constitute a misleading commercial practice, where the trader has no establishment in the country to which the domain name extension refers?
(1) The court agreed with the plaintiff that the defendant has breached the prohibition on misleading commercial practices as defendant referred on its website to "EBookers Belgium" and/or the indication that the defendant has an establishment in Belgium.
According to the court, the misleading character of this practice is established as the identity of the trader is in this way presented that the impression is created that the defendant has an establishment in Belgium, whereas this is not the case in reality.
Defendant had argued that its practice was not misleading as it referenced to its Dutch address on the website. However, this was not accepted by the court as the latter stated that this address was exactly preceded by the indication of EBookers Belgium, as a result of which the website visitor would have assumed that the trader also has an establishment in Belgium.
(2) Secondly, the court emphasized that the mere use of a .be top level domain does not in itself entail a misleading practice in case the trader does not have an establishment in Belgium, as the application for and the obtaining of a .be extension in no way requires the applicant to be established in Belgium.
|URL Decision||Decision full text|
The plaintiff's arguments were followed on the points above-mentioned. However, its other arguments (not mentioned here as they are not relevant) were dismissed. The defendant changed its website to no longer refer to a Belgian establishment.
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