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Europe: eBay is liable for counterfeits sold on its site

by david.nunes


– Comment from Intellectual Property specialists Marks & Clerk in response to ruling by European Court of Justice –

The European Court of Justice today struck a blow to eBay in its fight against L’Oréal and other brand owners over liability for counterfeit goods sold on its website. The Court today ruled that eBay and other online marketplaces cannot claim exemption from liability for these infringements, if they are aware of the illegal nature of the sales their sites facilitate.

Today’s ruling means that, in the future, brand owners will be able to initiate legal proceedings against online marketplaces if they allow counterfeit goods to be sold through their site.

Today’s long-awaited ruling gives definitive answers to questions referred to the European Court of Justice in August 2009 by the High Court of Justice for England and Wales. Mr Justice Arnold of the High Court referred the questions after finding in favour of eBay in May 2009 in a landmark ruling in the struggle between the luxury cosmetics giant and the online marketplace. Later in the same year, a French court ordered eBay to pay LVMH, the owner of the Louis Vuitton brand, 1.7m Euros for failing to prevent the sale of LVMH products on its website. Today’s ruling from the European Court of Justice hands the advantage to L’Oréal and other big brands.

Kirsten Gilbert, Partner at Marks & Clerk Solicitors, comments:

“Brand owners like L’Oréal will be jubilant at today’s ruling. Trade mark owners are no longer alone in their fight for online brand protection. Instead, as is the case on the High Street, companies which facilitate sales can be held accountable for the goods which pass through their hands.

“Brands have been concerned for years now that the internet has facilitated the trade of counterfeit goods. Items which would otherwise be available only from back-street traders have become instantly available to consumers in the privacy of their own homes. L’Oréal and other brand owners will be hoping that online marketplaces like eBay now sit up and pay attention to the sales of counterfeit items which go through their sites.”

Kirsten Gilbert continues:

“European trade mark law has been straining under the pressure of dealing with the internet age. The information revolution and the rise of online commerce have created a host of scenarios never envisaged when our laws were drafted. Today’s ruling will give national courts guidance on how to approach just one of these scenarios.

“We have seen over the past years different national courts finding in favour of opposing parties in similar cases. Inconsistency in the area of the online counterfeiting trade will be reduced following this ruling. Brand owners will now be working with a legal system which protects one of their key assets – their brand identity.”



About Marks & Clerk


Marks & Clerk is recognised as one of the world’s leading intellectual property firms. The firm’s patent and trade mark attorneys together with associated firm of solicitors offer clients a comprehensive range of intellectual property services – covering patents, trade marks, designs and copyright. This includes obtaining protection worldwide, portfolio management, strategic advice, commercial advice, licensing, enforcement, due diligence and litigation. Marks & Clerk has expertise in a whole range of commercial sectors and technologies.


With a network of 19 offices across the UK (11 locations), Europe, North America and the Far East and long-established relationships with other leading IP firms worldwide, the firm is able to meet clients’ IP requirements on a local and global basis.


Marks & Clerk has been consistently ranked a top tier firm in the UK for both patents and trade marks in the Managing Intellectual Property Annual Worldwide Survey and the Legal 500 and Chambers Directories.





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