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Is ebay liable?

Written by Michael Coyle on 06 August 2007

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We all agree that the Internet has been a good thing both from a personal and business perspective. The latter has seen a phenomenal growth. However it has also exacerbated the problem of infringement of intellectual property rights (IPRs).

What laws have been introduced to assist?

  • Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-Commerce Directive).

Should intermediaries be liable?

Time and time again you hear the cry of IPR holders seeking to hold Google ebay etc liable. Courts, particularly in the US, are facing this question on a regular basis. IPR owners are increasingly arguing that intermediaries should also be liable if they fail to police and prevent infringements on their sites.

UK

No UK case has been brought on this issue. If you sought to bring a case against ebay you could argue:

  • Direct trade mark infringement.
  • Ebay is using the registered trademarks in the course of trade;
  • this use is not in accordance with honest practices in industrial or commercial matters.
  • Liability as a joint tortfeasor with users selling infringing products. This requires proof that the site induced or shared a common design with the user (mere facilitation is not enough).

This is uncertain. In the German case where Rolex unsuccessfully sued ricardo.de, the court held that ricardo.de did not intentionally contribute to infringement ([2004] GRUR 2004 (a decision of the Federal Supreme Court (Bundesgerichtshof)). However, in the proceedings which Rolex brought against the well-known online auction site eBay, the Federal Supreme Court recently held that eBay could be liable as an accessory and, when informed of specific infringements, must take all technically feasible steps as are reasonable to ensure that in the future such counterfeits are not offered for sale on its online auction site ([2007] I ZR 35/04 (a decision of the Federal Supreme Court)). It is possible to argue that auction sites that actively promote and make a profit from each sale of infringing products on their sites are sharing a common design with those sellers.

At the moment ebay does remove via its vero programme.

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