Online marketplaces are ‘retail services’, argues CJEU adviser
A legal adviser to the EU’s top court has said that ‘retail services’ should include online marketplaces when categorising the goods and services covered by trademarks.
In an opinion issued yesterday, June 25, advocate general (AG) Gerard Hogan urged the Court of Justice of the European Union (CJEU) to throw out an appeal filed by Spanish company Wallapop.
Founded in 2014, Wallapop allows users to buy and sell used items. The company filed an application to register its logo as a trademark covering online trading services.
It was opposed by Spanish company Unipreus, which operates the Wala sportswear retailer. The European Union Intellectual Property Office (EUIPO) sided with Wallapop, finding that the services covered by each company’s marks were different, and that there was no likelihood of confusion.
But that decision was overturned on appeal by the EU General Court, which found an overlap between the online trading services covered by Wallapop’s mark and Unipreus’ “retailing of sporting articles”.
In a pending appeal, Wallapop has asked the CJEU to reverse the General Court’s decision and allow its trademark to proceed to registration.
But in yesterday’s opinion, Hogan advised the CJEU that the General Court’s ruling should stand. AG opinions are not binding, although they are usually followed by the court.
According to Wallapop, the General Court misunderstood the meaning of an online marketplace. Wallapop argued that it is simply an intermediary between different vendors, and does not sell anything itself—this is separate, Wallapop reasons, from the ‘retail services’ category in class 35.
But the AG said this argument can’t stand under the CJEU’s March 2020 decision in Tulliallan Burlington, a dispute between Burlington Fashion and the owners of the Burlington Arcade in London.
In that decision, the CJEU ruled that the role of shopping centres and arcades come under the definition of ‘retail services’. This same logic should apply to an online marketplace such as Wallapop, the AG advised the court.
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