L’Oréal v eBay

In a major announcement from the European Court of Justice, Advocate General Niilo Jääskinen has given his opinion in the case of L’Oréal and others against eBay which will have major implications for brand owners if the European Court of Justice supports his Opinion.

While the Advocate General’s Opinion broadly supports eBay’s assertion that it is not generally liable for trade mark infringements committed by its users, eBay will be liable if trade mark owners tell them about any infringements and they do not take any action.

For trade mark owners, this is a significant Opinion by the Advocate General. It will potentially allow them to rely on eBay to prevent sales of infringing goods.

Maggie Ramage, President of the Institute of Trade Mark Attorneys (ITMA) said: “It is incumbent on trade mark owners to exercise vigilance on sales of their products on eBay. If they spot any infringement of their marks, then they must let eBay know immediately so that eBay can withdraw the adverts for those products, and if eBay fails to do so it will potentially be liable for infringement.”

“Of course, this is only an interim assessment made by the Advocate General but, as around 80% of judgements follow the Advocate Generals’ Opinions, then it is likely the final ruling will uphold AG Jääskinen’s Opinion. We await that final ruling with interest.”

NOTES FOR EDITORS

1. The Institute of Trade Mark Attorneys (ITMA) was established in 1934 as the professional body representing those persons qualified to act for the owners of trade mark and allied intellectual property rights (in particular, registered designs) both nationally and internationally. It now represents the vast majority of UK registered trade mark agents and all UK Trade Mark & Design Litigators.

2. Currently ITMA has approximately 500 practising members; it also extends associate membership to professionals in related fields of law and overseas membership to foreign trade mark attorneys. Its total membership (all classes) is about 1600 members, primarily located in the United Kingdom and Europe, but also in more than 50 other countries.

3. ITMA is regularly consulted by UK government and by international bodies when questions affecting trade mark and allied intellectual property rights arise. It has regular meetings with the Intellectual Property Office (IPO), the Community Trade Marks Office (OHIM), the World Intellectual Property Organisation (WIPO) and other sister organisations in Europe and beyond. For more information visit www.itma.org.uk.

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