Advertising and offering products that bear a sign identical or similar to the registered trademark of a third party without the latter's authorization constitutes trademark infringement.
To what extent can the marketplace through which branded products pass be worried about counterfeiting by the owner of the brand when an unscrupulous seller, not authorized by the brand, is rampant there?
When the platform is content to store and ship the products sold by third parties who use the platform to sell their goods, the CJEU considers that the marketplace cannot be liable for trademark infringement, in line with what is provided for in the Article 14 of Directive 2000/31/EC on electronic commerce, and with the clarification that the platform can always be notified to compel it to assume its responsibilities;
The question referred to the Court of Justice of the European Union in the Louboutin / Amazon case would like to come back to this irresponsibility.
As part of its "Fulfillment by Amazon" program, Amazon is indeed more involved in the marketing of the third-party seller's product, including the performance of advertising and promotional activities, the provision of information to customers, the management of refunds of defective goods, payment for goods sold.
It could therefore be recognized as a part of the responsibility.
(Case C-148/21 –
In the draft DSA directive of December 15, 2022 (https://roquefeuil.avocat.fr/2021/01/2021-la-nouvelle-reglementation.html) (https://digital-strategy.ec.europa.eu/en/library/proposal-regulation-european-parliament-and-council-single-market-digital-services-digital-services), the regime of non-liability of the platforms is however maintained for the most part, but reinforces the obligations of the latter:
They must not lead the average and reasonably informed consumer to believe that the product or service which is the subject of the transaction is provided by the online platform itself.
They must find out about the seller by collecting information beforehand (article 22) and provide more efficient alert systems (article 19)...in short, they must comply with a whole series of constraints which will be liable, in the event of a breach, to trigger their responsibility. To be continued.
On the subject of copyright:
CJEU cases C‑682/18 and C‑683/18 Youtube, Cyando
Article 3 of Directive 2001/29/EC of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society;
Article 14 of Directive 200/31/EC of June 8, 2000 on electronic commerce;
With regard to these directives, the CJEU specifies that the liability of platforms in the online communication of content protected by copyright cannot be engaged if the platform is content with a neutral and technical role.
These clarifications do not concern the interpretation of the new Directive (EU) 2019/790 of 17 April 2019, article 17, on copyright and related rights in the digital single market.
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