eBay Might Be Liable For User Trademark Infringement: EU

Internet auction marketplace eBay may be liable for trademark infringements committed by users on its site if it plays an active role in their use, Europe's highest court ruled on Tuesday.

The auction site may also have to actively monitor its customers to ensure their offers for sale are lawful, the court ruled.

The case relates to allegations of trademark infringement through the sale of branded goods on eBay, lodged by L'Oreal, the world's largest cosmetics maker.

One of L'Oreal's complaints was over the sale on eBay of samples or testers explicitly marked "not for sale." The cosmetics giant also criticized the level of protection offered by eBay against the sale of counterfeit goods and the availability of goods to consumers in the European Union that were meant for other markets.

The court ruled that EU trademark rules do apply to offers for the sale of goods located outside the bloc if it is clear that those offers target EU consumers.

It said EU national courts should assess if any offer did target EU markets, but that in some cases exemptions from liability offered by EU laws may might not apply.

This would be the case particularly when an online service provider, such as eBay, "plays an active role" in managing information related to sale offers.

"When the operator has played an 'active role'... it cannot rely on the exemption from liability which EU law confers, under certain conditions, on online service providers such as operators of Internet marketplaces," the court said in a statement.

The court also ruled that an online market provider could be liable if it had enough information to judge that an offer was unlawful and failed to prevent access to it.

The court found that under EU law, member states had to ensure that national courts could order market operators to take measures that help to end trademark infringements by users of a marketplace such as eBay, as well as preventing further infringements of that kind.

"Those injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade," the court said.

(Reporting by Michele Sinner; Writing by Justyna Pawlak; Editing by Hans-Juergen Peters)

Copyright 2011 Thomson Reuters. Click for Restrictions.

Comments

[RecreationalPilot]

11:56 AM on 07/13/2011

In the US,the EFF and a group of Libraries are trying to fight software developers over a similar topic and have petitioned the US Supreme Court to hear the case. This case just does not impact software, but could impact ANYTHING a person buys - effectively eliminating the person's ability to re-sell the product.

If L'Oreal gave those testers to the seller, then they should have a claim. If the seller paid for those testers, then, in the US as it stands now, that seller has the right to resell those testers, even though a 'not for resale' label is printed on it. Currently, 'First Sale' trumps almost everything and gives the original buyer the right to resell it.

Normally, when you buy a book, artwork, software, etc, the owner owns 'that copy' and can give it away or sell it to another as long as that only copy is in existence and not duplicated. Libraries are concerned, because that could mean that books cannot be passed from a private party to a library, etc.

Check out the EFF's article below:

http://www.eff.org/deeplinks/2011/06/eff-asks-supreme-court-protect-first-sale-rights

[netzwerg]

09:26 AM on 07/13/2011

"i was investing in art,,a spent 100k,,for over 60 pieces,,al­l were fakes,,fra­uds,,over priced,tor­n trash etc"

You spend $100k on "art" on ebay?
I guess "there is an ***** born every 5 minutes, you just need to find them" is a true saying.

[Pleasedontdelete]

09:06 PM on 07/12/2011

If you are buying stuff on ebay without checking the seller's feedback, you DESERVE to be taken!
They put that feedback there for a reason, stop being greedy and lazy!

I've seen TONS of questionible listings, and an obsean amount of fraudlent listing (hi-jacked accounts were the description requires you to contact them via outside email).

100% of the time, it's more then obviouse, and completly aviodble.
But even if you do get scammed, you can always file a paypal claim.

[twitter ditter]

07:24 PM on 07/18/2011

No longer true! I purchased a camera on e-bay that was totally misrepresented by the seller. I filed a claim and eventually got my money back except for return postage. When a "sell" is undone by a claim and subsequent "problem resolution", e-bay gives neither party the opportunity to provide feedback. This policy allows fraudulent sellers to hide their activities and prevent others from discovering their deceptive practices. Now why would e-bay want the bad guys to continue selling? Hummm.... $$$$$$ & profits perhaps?

[Westof405]

08:24 PM on 07/12/2011

Someone at L'Oreal has too much time on their hands. Worried about customers selling samples? Oh Please. Stop making them if you are so concerned and just have sales people use full sized bottles of whatever you are selling.

I have bought and sold a few things on eBay and never been burned. I even sold a car and have sold a few things internationally. I also have used PayPal and Craigslist without a problem. Claims that eBay and Craigslist are just used by scammers is simply untrue. Craigslist is free for most sellers, so the idea that they are greedy is laughable. Most people are just trying to make a few bucks or get rid of things they don't want. If it looks too good to be true, probably is. Think the price is too high? Don't bid or buy it. How hard is that to understand?

Trademark and copyright infringement are serious problems on eBay. They do have a "take down" procedure, but it is cumbersome. Getting someone on the phone there is almost impossible unless you know in advance who you are calling, but subpoenas will get their attention. Fakes and counterfeit goods are all over the net. I've seen whole sites with nothing but fake outdoor wear on them.

ps. I used to sell fine art. I wouldn't buy anything online without knowing the source. There are fakes and forgeries of everything imaginable out there.

[Roz Bennetts]

12:27 PM on 07/12/2011

Actually we have the French to thank for the PayPal buyer pretection scheme, that only came into effect when eBay lost a court battle where it argued that it was not responsible for fake goods bought on its site and was 'just a venue fro bringing buyers and sellers together'.

[Cory Gudwin]

12:03 PM on 07/12/2011

The French just lost a huge Airbus subsidy case. This lawsuit is part of the retaliation.
This is what European companies get for charging huge prices for stuff in Europe whlie charging less than half that amount for the same item in the US. Of course people in Europe will buy online if they are getting overcharged locally.

[mykittywinks]

11:51 AM on 07/12/2011

Ebay is run by theves. They charge too much for the service they provide. As far as legal issues they have that is because ebay sticks it's nose into everybodys business. If they would stay out of the middle of things the company would be ok.

[tskfce1]

11:29 AM on 07/12/2011

ebay,is a clearinghouse for theives,,frauds,,and every kind of perpetraitpr know to exist,,a thought i was investing in art,,a spent 100k,,for over 60 pieces,,all were fakes,,frauds,,over priced,torn trash etc,,,also,,i got a 52 fender tele,,from washington state,,it was a stone lie,,the seller,,disappeared,,and got a new account ,,the same gd day!!!!!..im still looking for a class action!!!!!!!!!!!..criminals,,makeing billions,,on theives!!!!!!!!!!!!!!!!!!!!!!!!!!!

[micam66]

12:47 PM on 07/12/2011

You spend a 100 grand on art off of Ebay without verifying its authenticity and you blame Ebay? right.

[chrisbud5]

12:53 PM on 07/12/2011

Totally agree! Most of the items sold on Ebay are stolen or fakes why do you think it is so cheap? Ebay and sites like it (craigs list) need to be shut down. They promote crime and prostitution.

[pinkindie]

12:22 PM on 07/13/2011

That blanket statement is categorically false. I've purchased and sold over 1,000 items on Ebay and have never suspected or found any of the items to be fake or stolen.

[Erma Bublitz]

11:00 AM on 07/12/2011

I thought free trade was legal? Or is that just for the rich and powerful and not for mom and pop sellers on eBay?

[hatstix]

01:29 PM on 07/12/2011

Agreed. I have bought and sold many times on ebay and found those I have dealt with to be honest and forthright. It's a workable avneue for us small potatoes that just want to add to our existing income. Greed and corruption can be found virtually anyplace on earth. You just have to not fall into it yourself and learn to circumvent it as best as possible.

[sj user1]

10:58 AM on 07/12/2011

I support this if it stops people from listing Mega Blocks as Lego.

[gdspd33]

10:55 AM on 07/12/2011

RonD--We assemble coherent thoughts into sentences, try it sometime!

[Nic the wonder puppy]

10:51 AM on 07/12/2011

I wish i could ebay

[Ron D]

10:48 AM on 07/12/2011

The only thing i wish is that ebay could have some way of stopping owners of sales from running up the sales price like make them say buy now at this price on all itemsthat way the price could not go past that price

[Yayabeanes]

10:25 AM on 07/12/2011

For years now, Ebay USA has been quoting USPS First Class shipping costs over 13 ounces that do not even exist.

[charlcreat]

10:11 AM on 07/12/2011

I guess they figured after they tagged Microsoft, the sky was the limit. European Union, Champion of the Underachiever, Bastion of Mediocrity. If we can't come up with something as cool or innovative, we'll punish you for doing so. What do they really want, a juicy settlement so they can continue propping up Greece?

[French Toast]

01:44 PM on 07/12/2011

Siemens called. They laughed in your face.