2011 years, Internet shopping is on the rise, But the EU market has seen various forms of IP infringement relying on the remote nature of the Internet. The European Court of Justice L'Oréal vs. eBay In the ruling, Conduct sorting out the behaviors and responsibilities of selling infringing commodities through e-commerce platforms, At the same time, it makes a detailed analysis of the responsibility and obligation of the e-commerce platform operators when their users use the platform service infringement. For web operators of e-commerce platforms accessible within the EU domain, And sellers of goods to the EU through online platforms, The ruling has important guiding significance. 　　 (Because of the many issues involved in this case, Therefore, the whole case depends on the type of infringing goods and the responsibility of the infringer, This article is divided into two parts, This is the next chapter "Platform operator responsibility" )

　　 [background]

　　L'Oréal It's a perfume company, A manufacturer and distributor of cosmetics and hair care products, With many UK national registered trademarks and EU registered trademarks. L'Oréal Implement the closed authorized distribution model, Its commodity distributors shall not supply other distributors without permission.

　　eBay Is an e-commerce platform operator, Users registered on the platform, You can use the platform to display and sell products on the web, eBay A pro rata cut of transactions completed through the platform. Both parties must agree eBay The protocol content provided can only use the platform services, The agreement explicitly prohibits the sale of counterfeit goods and goods that violate trademark rights. In addition to routine maintenance and operation of the platform, eBay And through a third party (Search engine company) Advertising services provided, Publicize and promote its own platform services, And the sales activities of users who use the platform to sell goods.

　　2007 years 5 month 22 day, L'Oréal to eBay Send a letter, Warned its platform users of sales violations L'Oréal The situation of goods with trademark rights: Including counterfeit goods, Freebies and samples, There is a lack of outer packing, and L'Oréal Goods intended for sale in North America. Cause pair eBay The response to the warning letter was unsatisfactory, L'Oréal Multiple infringement cases have been filed in several EU member states, In a complaint to the High Court of England, Claim identification eBay As an e-commerce platform operator, They shall be jointly liable for infringements by their users; eBay Display on the platform website L'Oréal Related trademark, And in a third party "Keyword search" Used in advertising services L'Oréal Act of trademark, Infringement of plaintiff's trademark rights; simultaneously, Request pair eBay Injunctive measures, Avoid the expansion of trademark right losses.

　　2009 years 7 month 16 day, The British High Court decided to stay the case, The European Court of Justice is requested to make a preliminary ruling on the following issues: Sold through e-commerce platform "unconventional" Whether the commodity infringes the trademark right; An advertising campaign that uses another person's registered trademark as a search keyword, Whether it is an act of use in the sense of trademark; and, A third party uses the services of the Platform to commit infringement, Whether a ban can be imposed on e-commerce platform operators?

　　 [conclusion]

　　E-commerce platform operators through the third party advertising and other forms, Advertise its own platform services and promote products sold by users of the platform

　　Google Company launch "Keyword search" Advertising service, Users of the service, Search terms can be set in the background. When Internet users in Google When the search engine search box contains the above keywords, The AD content set by the AD service user is displayed at the top and right of the search results page.

　　In this case, eBay use Google Company's above advertising services, Used in the background keywords L'Oréal A registered trademark of the company. When Internet users in Google When the search page types the name of the trade mark above, Advertisements that appear on the search results page include eBay E-commerce platform link, As well as information about the products sold by users of the platform that contain the trademark.

　　The European Court of Justice Google France and Google A case (C-236/08, C-238/08) The ruling looked at the use of other people's registered trademarks as search keywords by advertising users, That is, whether an advertisement is advertising a product that you sell or a product that someone else sells, Belong to "European Union regulation 89/104/EEC Number instruction" The first 5 (1) Bar sum "European Union regulation 40/94 No" The first 9 prescribed "Use of trademarks in trade activities" act. But if the case is disputed, It is necessary to determine that the trademark owner has the right to prohibit the above advertising activities, There are two other issues to consider: (1) eBay use Google Whether the goods and services advertised by the company's advertising service are the same as the goods or services designated for use by the trademark accused of infringement; and, (2) Whether the advertising content infringes or is likely to infringe any function of the trademark accused of infringement?

　　First of all, eBay use L'Oréal The registered trademark as the keyword, Advertise its own platform services, with L'Oréal Registered trademarks specify that the goods used are neither the same nor similar. But EU law also provides for extended protection of well-known trademarks, Can be extended to different categories of goods and services. Therefore, The accepting court shall examine the specific circumstances of the case, Judge whether the trademark owner has the right to prohibit eBay To use its trademark to advertise a service different from its designated goods or services.

　　secondly, eBay will L'Oréal The registered trademark of is set as keyword, To promote goods with the trademark sold by users of its platform. The European Court of Justice has held that, Use other people's trademarks as keywords, Even if it's not the product it sells, Still belong to "Use of trademarks in trade activities" act. Therefore, If the content of the AD is not clear and explicit, Making it impossible or difficult for Internet users to determine the true origin of advertised goods, Or misidentify the economic relationship between the commodity seller and the trademark owner, The act shall be recognized as infringing on the registered trademark "Distinguish between sources of goods and services" Function of.

　　To sum up, The European Court of Justice held that, "European Union regulation 89/104/EEC Number instruction" The first 5 (1) (a) Bar sum "European Union regulation 40/94 No" The first 9 (1) (a) Article shall be understood as, E-commerce platform operators "Keyword retrieval" Advertising service, Set the registered trademark of others as the search keyword, To promote the sale of goods bearing the trademark on its platform, And Internet users get content from advertisements, Unable to take clear or reasonable account of the true origin of the goods advertised, The relevant trademark owner has the right to prohibit such advertising.

　　The e-commerce platform page uses the registered trademark of others

　　How to view the behavior of e-commerce platform displaying others' registered trademark on its page, The European Court of Justice first noted, Use online platforms to sell goods, The services provided by platform operators include the display of information about goods sold by their users on platform pages (Trademarks and other) .

　　secondly, When platform users use platform services to sell goods, Inevitably, trademark information of relevant commodities will be displayed on the corresponding webpage of the platform. Although on the surface, Related trademarks are displayed on the platform page, Means platform "Have used" trademark, But whether such use constitutes an EU norm "Use of trademark" act, Should be placed under the corresponding legal norms.

　　 "European Union regulation 89/104/EEC Number instruction" The first 5 Bar sum "European Union regulation 40/94 No" The first 9 Third party as specified in this article "use" Trademark refers to, The use of the trademark by the third party in its own business activities. Therefore, In the process, The real user of the trademark is not the platform operator, They are users of the platform who are selling relevant goods.

　　Conditions for e-commerce platform operators to assume responsibility for users' infringing acts or storing illegal data by using platform services

　　E-commerce platform operator "storage" Platform user data

　　 "European Parliament and Council on Norms (European Union) Internal market for information society services, In particular, the directive on specific legal issues of electronic commerce (The first 2000/31/EC No) " will "Information society service (information society service) " Define as, Directives based on the service receiver, Remote services that use electronic devices to store and process data, Usually a paid service.

　　In this case, eBay Provide technical support for users to realize online remote transaction. When users register sales accounts and upload information about products for sale, eBay The server performs data storage behavior. After the user completes the transaction through the platform, eBay Charge a pro rata fee. Therefore, eBay As an e-commerce platform operator, Conform to "Information society service" Elements of.

　　 "European Union regulation 2000/31/EC Number instruction" Chapter II 4 section (Instruction control 12 Article to clause 15 article) , The law of member States provides for intermediary service providers (intermediary service provider) Circumstances under which liability should be borne, limit. Among them, The first 14 The article specifies intermediate service providers "storage" Exemptions in the case of user data.

　　The European Court of Justice Google France and Google It was clearly stated in the decision, Service providers can apply "European Union regulation 2000/31/EC Number instruction" The first 14 The premise of the article is, The service provider is neutral, The behavior it performs to store data is purely technical, Automatic and passive, There is no knowledge or control over the content of the stored data.

　　If the e-commerce platform operator provides storage services for the data provided by the platform users, We also assist platform users to optimize the way of commodity sales display or promote commodity sales activities, It should be considered that platform operators do not take a neutral position between platform user vendors and potential consumers, But to play a positive role, It is aware of or able to control the content of the stored data. In this case, Not part of instruction No 14 Article can be applied to categories.

　　The accepting court shall examine it eBay In the course of disputed sales in this case, Whether any of the preceding conditions exist.

　　E-commerce platform operator "know" Illegal activities or data information of platform users

　　If the court considers that the platform operator's data storage behavior is only technical automatic processing, Did not play a positive role, so, Can be applied "European Union regulation 2000/31/EC Number instruction" The first 14 Provision of article. The next problem to solve is this, Whether platform operators can apply the first 14 (1) The circumstances of the exemption specified in this article, namely, Service provider cannot "Really understand illegal activity or data content" the, They are not liable for illegal data stored by them; and, At no "Knowledge of the facts and circumstances of an apparent illegal act or information" Under the, Or promptly take steps to remove or block access to the information once it becomes known, No liability for damages.

　　Therefore, Even if the e-commerce platform operator can prove that its platform users are accused of infringing goods sales activities, Did not play a positive role, But as a matter of duty (diligent) operator, By doing their own due diligence or by being informed, It should be understood that the controversial behaviors of platform users are illegal, But failed to comply with the No 14 (1) Article provides for prompt action, It may still be liable for damages resulting from the violation.

　　Seeking an injunction against e-commerce platform operators

　　 "Directive of the European Parliament and the European Commission on enforcement of intellectual property rights (The first 2004/48/EC No) " The first 11 Article provision, "Member States shall ensure that when a finding is made that an intellectual property infringement has been established, To prevent further infringement, The judiciary has the power to impose an injunction against the infringer. If the laws of the member states permit, For non-compliance with the injunction, Punitive measures may be imposed. In no breach "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " The first 8 (3) Under the premise of the article, Where a third party violates intellectual property rights by using the services provided by intermediary service providers, Member States should also ensure that right holders have the right to apply for injunctions against intermediate service providers. "

　　The European Court of Justice stated that, First of all, The first 11 It appears twice in the article "injunction" word: First appears in the clause No 1 other "To prevent further infringement" ban, The second time was at No 3 In-sentence appearance, Indicates that injunctions can be imposed against intermediary service providers. In terms of legal logic, clause 1 An injunction against the infringer, The aim is to prevent the infringement from continuing; And control 3 The sentence relates to the infringement of the intermediate service provider, It's more complicated than that, Other types of injunctions should be allowed. Therefore, two "injunction" Have different meanings.

　　secondly, "European Union regulation 2004/48/EC Number instruction" The first 11 The legislative purpose of the article is, Ensure effective protection of intellectual property rights by member States. Therefore, The clause 3 The sentence should be understood as, Allowing courts in member states to require ISPs (For example, Internet users can access the network business platform service provider) Take effective measures, It can also end infringements that use its services, It also helps prevent future violations. The legal basis for this understanding is "European Union regulation 2000/31/EC Number instruction" The first 18 article, This article requires Member States to ensure that courts comply with their national laws regulating information society services, Quick action to end alleged infringement and prevent further damage to related interests in the future. 　　As for specific measures that can be required of information society service providers, To be determined by the courts of member States in accordance with their national laws, However, it should be ensured that the injunction measures can effectively achieve the purpose of the injunction, And it should be fair for the implementers of measures, Appropriate and economical, And the measures to be implemented shall not impede normal and lawful trade activities.

　　 [comment]

　　In the modern era of rapid development of the Internet, as "Information society service" One of the providers of e-commerce platform operators, It is becoming an important hub of world economic and trade activities. How to ensure that platform users and Internet users use Internet technology and services to carry out legitimate trade activities at the same time, Try to avoid the occurrence of infringement and risk unique to the Internet environment, Platform operators should pay attention to the problem.

　　In this case, the European Court of Justice systematically analyzed the identification of the platform users using the platform services to sell infringing goods, And infringing on other people's intellectual property, The possible responsibilities and obligations of the platform operator. For the European Economic Area/Within the EU internal market area, Or platform operators whose target consumer groups of platform users are located in this field, It has important guiding significance.

　　 [reference] 　　 " [Eu trademark] E-commerce platform users selling infringing goods (Part I) (C-324/09) "

　　author: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights