What? The ECJ decision in L'Oréal SA v eBay International AG 2011, provides more protection for brand owners.

So What? Internet service providers (ISPs) can be liable for trade mark infringing goods placed on their site and injunctions against ISPs may aim to prevent future infringements in addition to current infringements.

In L'Oréal SA v eBay International AG 2011, the European Court of Justice (ECJ) has ruled on a number of questions referred to it by the High Court on trade mark infringement issues arising from:

  • the use of advertising keywords in sponsored links to online marketplace websites
  • offers for sale on such sites of trade-marked products whose packaging has been removed; and
  • the scope of injunctions that may be granted against the operators of such websites.

The main points of the ECJ's decision are:

  • Internet service providers ("ISPs") will lose the benefit of the exemption from liability for intermediaries under the E-Commerce Directive if they take an active role in relation to offers of trade mark infringing goods placed on their sites. This would include, for example, assisting with the promotion or presentation of the users' advertisements which allows them to have knowledge or control of the data that they are storing; and
  • Injunctions against ISPs could be aimed at the prevention of future infringements as well as the cessation of ongoing infringement. For example, an injunction ordering an ISP to suspend the account of an infringer may be warranted to prevent further infringements by that seller.

What? The ECJ decision in L'Oréal SA v eBay International AG 2011, provides more protection for brand owners.

So What? Internet service providers (ISPs) can be liable for trade mark infringing goods placed on their site and injunctions against ISPs may aim to prevent future infringements in addition to current infringements.

In L'Oréal SA v eBay International AG 2011, the European Court of Justice (ECJ) has ruled on a number of questions referred to it by the High Court on trade mark infringement issues arising from:

  • the use of advertising keywords in sponsored links to online marketplace websites
  • offers for sale on such sites of trade-marked products whose packaging has been removed; and
  • the scope of injunctions that may be granted against the operators of such websites.

The main points of the ECJ's decision are:

  • Internet service providers ("ISPs") will lose the benefit of the exemption from liability for intermediaries under the E-Commerce Directive if they take an active role in relation to offers of trade mark infringing goods placed on their sites. This would include, for example, assisting with the promotion or presentation of the users' advertisements which allows them to have knowledge or control of the data that they are storing; and
  • Injunctions against ISPs could be aimed at the prevention of future infringements as well as the cessation of ongoing infringement. For example, an injunction ordering an ISP to suspend the account of an infringer may be warranted to prevent further infringements by that seller.