Euro court: eBay etc can be liable in fake tat cases
Online marts to cop it if they take 'active role'
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EBay and other online marketplaces will be liable for sellers' trademark infringements if they promote infringing sales or help sellers to "optimise" their pages, the European Court of Justice (ECJ) has ruled.
In one of many cases dealing with how online marketplaces should deal with trademark infringement, the ECJ has said that marketplaces are not responsible for infringement when all they do is allow third parties to display infringing goods for sale on their site.
But a marketplace loses the right to that exemption from liability when its involvement is greater and it "plays an active role of such a kind as to give it knowledge of, or control over, the data relating to the offers for sale, when it provides assistance which entails, in particular, optimising the presentation of the online offers for sale or promoting those offers", according to an ECJ statement.
The Court was asked a series of questions by the UK High Court in a case involving online auction site eBay and cosmetics company L'Oréal.
The Court said that EU trade mark law applies to sales that are directed at the EU even if the seller is located outside the EU.
It said that even marketplaces which do not promote infringing sales will lose their right to exemption from liability for sellers' trade mark infringements if "a diligent economic operator" should have been able to tell that sales were unlawful and it did not put an end to the sales.
The ECJ, Europe's highest court, also said that marketplaces can be forced by national courts to identify infringing sellers and that courts must have the power to issue and enforce injunctions stopping those sellers from engaging in further infringing sales.
See:
The ruling
The original High Court ruling
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COMMENTS
One easy win
Can they stop the practice of sellers advertising stuff as "Stainless Steel diver's watch NOT Rolex, Seiko, Omega" just to get the item to appear in search results for the real thing?
Have you misread the decision?
This is not what it says at all?
Even if you only read the summary on here, it's clear: "the ECJ has said that marketplaces are not responsible for infringement when all they do is allow third parties to display infringing goods for sale on their site."
Your carboot analogy stands - the organiser would not be liable.
If, however, the carboot organiser put up signs saying "buying fake [Chanel] handbags here", it's more likely that they are doing something wrong - and that's the view of the court here, too.
This is nothing new - it's been around since 2000, when the eCommerce directive was passed. If a provider is not aware of an infringement, or circumstances from which an infringement would be apparent, it cannot be found liable. If, once aware, it fails to take action, it can be found liable - it loses it shield. There is no obligation on an ISP to inspect every bit of tat - but, if it does, it needs to ensure it inspects well, to mimise risk.
Oh well
Give them even more excuses to put the fees up more and put in more draconian regs for sellers. It's just not worth bothering eBay any more, it was hard enough for casual sales before all this latest crap, it's nigh impossible to get rid of bits to make some pocket money. I shan't bother, just take it up the local charity or down the local dump in future!
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