Although the decision appears on its face to be a positive development for online marketplaces, it is does not definitively resolve questions of liability.
By Deborah J. Kirk and Elva Cullen
On 2 April 2020, the Court of Justice of the European Union (CJEU) delivered its ruling in Coty Germany v Amazon — marking a development for online marketplaces in relation to liability issues. The case had raised the possibility that online marketplaces could be found directly liable for infringing products sold on their platforms.
Currently, if a third party sells infringing products, within the EU, on an online marketplace, the online marketplace has (i) no liability if it does not have actual knowledge of the infringement or where it acts promptly to remove the infringing content once it becomes aware of it: and (ii) only secondary liability where it has knowledge and fails to remove the infringing content.
The German Federal Court had requested a preliminary ruling on the interpretation of Article 9(3)(b) of the 2017, and Article 9(2)(b) of the now-repealed 2009, Trade Mark Regulations (Council Regulation 2017/1001 and Council Regulation No 207/2009 (as amended by Regulation 2015/2424) respectively) asking: Does a person who, on behalf of a third party, stores goods which infringe trade mark rights, without being aware of that infringement, stock those goods in order to offer them or put them on the market for the purposes of those provisions, if that person does not itself pursue those aims?
The CJEU addressed this question by ruling that a person who, “on behalf of a third party, stores goods which infringe trade mark rights, without being aware of that infringement, must be regarded as not stocking those goods in order to offer them or put them on the market for the purposes of those provisions, if that person does not itself pursue those aims” [emphasis authors’ own]. Continue Reading