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12 July 2011

CJEU Publishes Ruling on L’Oreal v eBay Case

CJEU Publishes Ruling on L’Oreal v eBay Case

The Court of Justice of the EU has today released a long awaited ruling on the preliminary questions referred to it by the UK High Court in the case of L’Oreal v eBay. The ruling dealt with several issues. 

Of particular interest to trade mark holders and operators of online marketplaces such as eBay, will be the Court’s comments on the interpretation of Article 11 of Directive 2004/48/EC (the Enforcement Directive). Article 11 requires Member States to ensure that rightholders are able to apply for an injunction against intermediaries, such as online marketplaces, whose services are used by third parties to infringe intellectual property rights. Today the Court confirmed that Article 11 required Member States to ensure that National Courts could grant injunctions ordering the operator of an online marketplace to take measures, not only to end the infringement of intellectual property rights by users of its services, but also to prevent further infringements of the same kind. Such injunctions should not create barriers to trade and must be “effective, proportionate and dissuasive”.

Whilst the Court confirmed that operators of an online marketplace could not be ordered to actively monitor the data of each customer for infringement, online marketplaces may need to make it easier to identify sellers. In practice this is likely to mean more onerous obligations for eBay and other operators of online marketplaces in the future. It will now be up to the High Court in London to say what eBay needs to do.

Case C-324/09 L’Oreal SA, Lancome parfums et beaute & Cie SNC, Laboratoire Garnier & Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL and eBay (UK) Limited and others.

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