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CJEU, December 22nd, 2022 decision in Amazon v Louboutin: towards increased liability of e-commerce platforms in case of trademark infringement
Article European Law | 20/02/23 | 1 min. |
In a case pitting Christian Louboutin against Amazon involving ads by third-party sellers for counterfeit red-soled shoes published on its online marketplace, the Grand Chamber of the Court entered a decision that has called into question any certainties concerning the liability of e-commerce platforms.
The CJEU considers in effect that Amazon can be held directly liable for the promotion and distribution of fake Louboutin products by third-party sellers, if “a reasonably well-informed and reasonably observant internet user might believe that the operator [Amazon] is marketing, in its own name and on its own account, the [infringing] goods”. In such circumstances, the CJEU considers that the operator of an online marketplace may be considered to be making use of a sign protected as a trade mark within the meaning of Article 9(2)(a) of Regulation No. 2017/1001 on the European Union trade mark.
Among the criteria applied by the Court to identify such a use and to establish the resulting liability of the platform is the method of presentation of the ads (in the case at point the ads by Amazon or third-party sellers were presented in a uniform manner) and the existence or not of ancillary services offered by the platform, such as the storage and shipping of goods.
The solution applied in this case will doubtless lead national courts to change their case law in this area, just as it should encourage platforms to adapt their operating methods.