Red soles, a marketplace and the categories of trade mark liability: Louboutin v Amazon before the CJEU

Ohly, Ansgar (2022): Red soles, a marketplace and the categories of trade mark liability: Louboutin v Amazon before the CJEU. In: Journal of Intellectual Property Law & Practice, Bd. 17, Nr. 7: S. 575-585

Abstract

Traditionally, most jurisdictions have distinguished between primary and secondary liability in IP law. But recently, this dichotomy has come under challenge in the EU. In copyright law, a new, unitary form of liability for communication to the public has emerged. In trade mark law, however, the Court of Justice of the European Union (CJEU) has so far distinguished between both forms of liability. But in the Louboutin v Amazon cases, which are pending before the CJEU, the Court has been invited to regard a 'hybrid' platform, which acts both as a retailer and as a marketplace operator, as a user of the trade mark when products are offered by third-party sellers. This article argues that the CJEU should decline this invitation and maintain its distinction between primary and secondary liability. A person only uses a trade mark if (s)he has full control over the marketing of goods or services under the mark. A marketplace operator does not have this control, even if the marketplace and its own retail business are highly integrated.

• Dokumententyp: Zeitschriftenartikel
• Fakultät: Jura
• Themengebiete: 300 Sozialwissenschaften > 340 Recht
• ISSN: 1747-1532
• Sprache: Englisch