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eBay liable for trademark infringement


Case C-324/09 L'Oréal v eBay, judgment of 12 July 2011.

The Grand Chamber of the Court of Justice of the European Union has interpreted the Trade Marks Directive, Electronic Commerce Directive and IP Enforcement Directive in a ruling which has delighted brand-owners but been hailed as "grim reading for the online marketplace".

The perfume company L'Oréal complained that users of eBay who searched for its products were directed to goods that infringed its trademarks, either because they were counterfeit or because they were intended for sale outside the EU. Arnold J in the Chancery Division referred 10 questions for a preliminary ruling from the Court of Justice.

The Court held that the operator of an internet marketplace does not itself use trademarks if it provides a service consisting merely in enabling its customers to display signs corresponding to trademarks on its website.

It will infringe those trademarks, however, if it plays an active role in relation to infringing goods (e.g. by optimising the presentation of the online offers for sale, or promoting those offers). It will also infringe them if it was aware of facts and circumstances on the basis of which it should have realised that the online offers for sale were unlawful, and failed to act promptly to remove the data or disable access to them.

National courts must, in addition, be able to grant injunctions requiring such infringements to be brought to an end and not repeated.

The judgment is here.

David Anderson QC appeared in the CJEU for L'Oréal.