L’Oréal –v- eBay– Clash of the Titans
Streszczenie:The long-awaited decision of the European Court in the L’Oréal –v- eBay was issued on July 12th 2011.
The case concerned the liability of an operator of an on-line market place for trade mark infringing goods which are advertised on its website.
The question related to goods which were advertised on the eBay website allegedly in infringement of the L’ Oréal trade mark.
The EU Ecommerce Directive 2000/31 does provide an exemption for website hosting services who merely store on their websites information provided by a recipient of the service, on condition that:
- "The provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
- The provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
This exemption does not apply “when the recipient of the services is acting under the authority or the control of the provider”.
What the European Court appears to have ruled in L’ L’Oréal –v- eBay is that the mere hosting of information relating to trade mark infringing goods would not expose the hosting service (i.e. eBay in this case) to liability for such infringement but where the website host does provide assistance to enable the presentation of the offers in question to be optimised or promoted or where the website host was aware of effects or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and failed to act expeditiously to remove or disable the information, then in those circumstances the website host/operator (i.e. in this case eBay) could be liable for trade mark infringement.
The European Court judgment is a complex one and deals with a number of other issues relating to trade mark infringement but the message seems to be that website hosts such as eBay cannot turn a blind eye to the advertisement of trade mark infringing goods on their websites but must at least to a degree monitor the misuse of their websites by trade mark infringers and take steps to prevent such misuse.
The requisite level of monitoring by website hosts will, no doubt, be a matter of much intellectual discussion by analysts of the European Court judgment but it does appear that the legal position of trade mark proprietors such as L’Oréal has been enhanced by the Court decision.
© AUGUST 2011 DAVID GLASS
ALL RIGHTS RESERVED