The English Court of Appeal examines how it is that the website of a business based in the United States, which did no business outside the US, did target UK consumers.

Argos UK, the owner of an EU trade mark registration for ARGOS, sells consumer products through catalogues, retail shops and online. It issued proceedings for trade mark infringement in the English courts against a US corporation whose core business under the name ARGOS was in relation to CAD systems for design and construction of buildings.

At first sight, the objection was surprising since the businesses traded in entirely different fields and Argos US had no clients outside the Americas and no intention of acquiring any. In fact it was mistaken visits to Argos US's website by internet users based in the UK, who entered the domain name of the US business www.argos.com into their browser, which led to the issues litigated between the parties.

Most of the traffic to Argos US's website was from the UK, and left the website in less than a second, but it overfilled Argos US's log files and used up most of the available bandwidth. Argos US decided to join the Google AdSense programme as a means of addressing the unwanted traffic to its website and providing a way for "lost" visitors to get back to Argos UK. It also, of course, made some money from the ads placed by Google.

The question to be considered by the English Court of Appeal was, did this constitute targeting of UK consumers? Or, put another way, was Argos US using its sign in the course of trade in the UK in relation to the provision of advertising space for the AdSense ads?

The court decided that it did not matter why internet users arrived at the site, i.e. mistakenly. It went on to note that the website as a whole presented conflicting messages: it advertised Argos US's core services which were not relevant to UK consumers, and also presented ads which were of obvious interest to UK consumers. It was not relevant, said the court, to ask whether the whole website, or even the whole of the landing page, would be seen by someone in the UK as "for me". Rather, it was the consumer's reaction on seeing the landing page on the website which should determine whether the website was targeted at the UK.

Whilst it was Google which ultimately controlled what ads appeared on Argos US's website, the consequence of this selection process was that ads of interest to UK consumers appeared on Argos US's billboard, which in this way became targeted at UK consumers. Overturning the lower court's decision, the Court of Appeal decided that Argos US (as well as Google) was targeting the ads at the UK, and that the sign ARGOS was being used in the UK in relation to the provision of advertising space for the AdSense ads.

The court then had to consider whether there was trade mark infringement. ARGOS is a well-known consumer brand in the UK and unquestionably has a reputation for retail services. There would be infringement if use of the sign ARGOS in relation to the provision of advertising space for the AdSense ads took unfair advantage of the reputation in the EUTM registration for ARGOS. On the facts, the court decided that Argos US had done nothing to seek out the unwanted internet traffic. Its strategy for dealing with this, participation in the AdSense program, gave it some advantage in terms of income stream but was commercially unobjectionable. The EUTM registration was not infringed because Argos US had not derived an "unfair" advantage from the reputation in the ARGOS trade mark.

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