AG backs Amazon in fake designer shoes clash
An advocate general has advised the Court of Justice of the European Union (CJEU) that the world’s largest online retailer should not be liable for the sale of counterfeit designer shoes.
Advocate general Maciej Szpunar said in his opinion on Thursday, June 2, that Amazon should not be liable for products sold via third parties, in reference to a complaint brought by Louboutin.
The CJEU also issued a press release on the opinion.
Back in 2019, Louboutin sought injunctions against Amazon and its subsidiaries from the Brussels Companies Court and the District Court of Luxembourg, arguing that Amazon displayed advertisements for red-soled shoes which had been placed on the market without Louboutin’s consent and so was infringing its trademark.
Louboutin’s red outer sole is registered as an EU and Benelux trademark.
According to Louboutin, Amazon’s mixture of own sales and third-party sales means that the platform can’t be regarded as a marketplace operator, but must be regarded as a distributor that is liable for the content of all the advertisements displayed.
In addition to publishing advertisements relating to its own goods and third party goods, Amazon also offers third-party sellers the additional services of stocking and shipping goods.
In light of Amazon’s “hybrid business model”, both courts referred their questions to the CJEU, asking whether the operator of the online sales platform can be held directly liable for the infringement of trademark rights on its platform.
In its referral to the CJEU, the Luxembourg court said: “Notwithstanding its abundant case-law, the CJEU has never ruled on the question whether an online distributor of goods which at the same time operates an online marketplace may be regarded as incorporating third-party offers in its own commercial communication.”
Now, according to the advisor’s opinion, Amazon cannot be held directly liable for infringements taking place on its platform as a “result of commercial offerings by third parties”.
Szpunar added that while the commercial offerings of third parties and of Amazon are presented uniformly and include Amazon’s logo, it is always specified whether the goods are sold by third party sellers or sold directly by Amazon.
“Accordingly, the mere fact that Amazon’s advertisements and those from third-party sellers appear next to each other does not entail that a reasonably well-informed and reasonably observant internet user might perceive the signs displayed on the advertisements of third-party sellers as an integral part of Amazon’s commercial communication,” said the press release.
It added: “The same applies to the additional services of assistance, stocking and shipping of goods bearing a sign identical to a trade mark, in respect of which Amazon has also actively contributed to the preparation and publication of the offers for sale.”
The advocate general’s opinion is not binding on the CJEU.
An Amazon spokesperson told WIPR: “The European Court of Justice has already made it very clear in a recent ruling that marketplaces are not directly liable for third-party products.”
The European court has already ruled on questions of law in this area before, namely in L'Oréal v eBay (2009) and Coty v Amazon (2020).
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