Saturday, 28 August 2010

Ebay v Hermès: Ebay Liable For Trade Mark Infringement

Court of Appeal of Reims, 20 July 2010,

Hosting providers (e.g. YouTube) enjoy a limitation of liability system, under the Directive on Electronic Commerce and the French Act on Confidence in the Digital Economy of June 21, 2004 (Loi pour la Confiance dans l’Economie Numérique, “LCEN”).

However, the Court of Appeal of Reims, in a decision of 20 July 2010, considered that Ebay acts as a “publisher of services”, and not a mere hosting provider with solely a technical and passive role, because in the present case it incited users to buy other products, in particular in a section called “purchase suggestion”. In addition, the Court took into consideration the fact that Ebay receives a percentage of the price paid for the product.

The Court therefore condemned Ebay for infringing on Hermès’ trade mark by allowing a user of the site to sell the counterfeit handbags, and presenting them in an attractive manner.