L'Oreal SA & Ors v EBay International AG & Ors [2009] EWHC 1094 (Ch) (22 May 2009)

• L'Oreal SA & Ors v EBay International AG & Ors [2009] EWHC 1094 (Ch) (22 May 2009)

  tags: trade marks
  

  • Are eBay Europe liable for trade mark infringements committed by their users? Do eBay Europe themselves commit infringements by using trade marks in relation to infringing goods? In a nutshell, those are the main questions raised by this claim. This is a test case brought by L'Oréal, one of a number they have brought in courts around Europe (including Case RG 07/11365 L'Oréal SA v eBay France SA, in which the Tribunal de Grande Instance in Paris gave judgment on 13 May 2009). The issues are not peculiar to products of the kind sold by L'Oréal, and other brand owners have also brought claims against both eBay Europe and other providers of similar services. Given that the key aspects of European trade mark law have been harmonised by a European Directive, and that there is also a European Directive harmonising the liability of internet service providers, European courts ought to be in a position to give the same answers to the questions raised. As matters stand, however, they are not able to do so. This is for two main reasons. The less important one is that one aspect of European trade mark law has not been harmonised, and that is the question of accessory liability. The more important reason is that the legislation is unclear and the Court of Justice of the European Communities has either not pronounced on the issues of interpretation or has not yet provided a clear answer.