EU Court Disagrees With Pretty Much Every Other Court; Says Ebay May Be Liable For Third Party Trademark Infringement
from the not-this-again dept
In the US, the war has been waged by Tiffany, which resulted in a big fat loss at the appeal court level and no interest from the Supreme Court in hearing an appeal. The courts correctly and smartly pointed out that general knowledge that people infringe via the site is not enough to say that the site should have to police the products -- especially since it had no clue how to tell what was really infringing and what was legit. Furthermore, Ebay bends over backwards to take down counterfeit products when it becomes aware of them, and also has a whole program to make it easier for trademark holders to alert the company of counterfeit goods.
In Europe, the battle has been waged by L'Oreal. And, even though European governments and courts seem to have a more welcoming view towards third party liability than US courts, for the most part, L'Oreal has lost many, many times in Europe (it's filed similar lawsuits in a whole bunch of countries). However, it appears to have finally found a slightly sympathetic court.... and tragically, it's the European Court of Justice (the top European Court), which has ruled that Ebay can be liable in certain cases, if it's determined (a) that the goods for sale target the EU market, if the company is considered to have played "an active role" and if it "has enough information" to determine that the use is infringing. Now this isn't quite as bad as some of the press have made it out to be, as the Court still says there are protections... but it does outline key exceptions to those protections, and the key question is on which side of the line Ebay falls.
Ebay claims that it's in compliance and thus not guilty of such infringement, but I'm sure L'Oreal will be pushing the case back in the specific court (this is the UK case). Still, just opening the door like this to a rather subjective standard of "active role" and having "enough information" to know that something is infringing, seems wide open to abuse... and could lead to Ebay making its service a lot less useful, just because some luxury brand giants hate competing.