CJEU weighs in on Amazon’s Louboutin clash
Litigation concerns the sale of counterfeit designer shoes on the platform | Advocat General has waded into the dispute | Case expected to have implications for online retailers.
In a potential hiccup for Amazon, the EU’s highest court has concluded that the online platform may be responsible for advertising counterfeit Louboutin shoes.
The Court of Justice in the European Union (CJEU) held yesterday, December 22, that it was ultimately for the national courts which had referred the matters to determine whether Amazon was responsible for the IP breaches.
In 2019, Louboutin had sought injunctions against Amazon and its subsidiaries from the Brussels Companies Court and the District Court of Luxembourg, claiming that Amazon displayed advertisements for red-soled shoes which had been placed on the market without Louboutin’s consent and were infringing its trademark.
Louboutin’s red outer sole is registered as an EU and Benelux trademark.
At the time, Louboutin alleged that Amazon’s mix of third-party sales and own sales meant that the platform can’t be regarded as a marketplace operator, but rather as a distributor that is liable for the content of all the advertisements displayed.
The Brussels and Luxembourg courts referred their questions to the CJEU, asking whether Amazon can be held directly liable for the infringement of trademark rights on its platform.
In June this year, advocate general Maciej Szpunar advised the CJEU that Amazon should not be liable for products sold via third parties. Szpunar noted 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.
The CJEU has now concluded that an operator may be using a sign identical to a registered trademark (appearing in an advertisement of a third-party seller on its online marketplace) when a “normally informed and reasonably observant user of its site has the impression that it is this operator who markets, in its name and for its own account, the counterfeit products in question”.
In a press release, the court said it was ultimately for the referring courts to assess whether Amazon users have the impression that the advertisements come from a third party or from Amazon itself.
“The court nevertheless states that the facts that Amazon uses a uniform method of presentation of the offers for sale published on its website, displaying its own advertisements and those of third-party sellers at the same time and showing its own renowned distributor logo on all of these [are relevant for this assessment],” said a (translated) press release.
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