The Louboutin/Amazon cases (C-148/21 and C-184/21) and Primary Liability Under EU Trade Mark Law

(2022) 44(7) European Intellectual Property Review 435-440

11 Pages Posted: 20 Apr 2022 Last revised: 9 Dec 2022

See all articles by Eleonora Rosati

Eleonora Rosati

Stockholm University, Faculty of Law

Date Written: April 8, 2022

Abstract

In Louboutin/Amazon (C-148/21 and C-184/21), the Court of Justice of the European Union (‘CJEU’) has been requested to determine whether and, if so, at what conditions the operator of an online marketplace (a hybrid marketplace) may be found liable under Article 9(2) of the EU Trade Mark Regulation 2017/1001 for the display of advertisements and the delivery of infringing goods that are offered for sale and placed on the market upon the initiative and under the control of independent sellers that avail themselves of that operator’s services.

This opinion piece addresses the broader context against which these joined cases will need to be assessed and concludes that the operator of an online marketplace like the one described by the referring courts should not be held directly liable for trade mark infringement. As such, the CJEU should answer all referred questions in the negative. Holding otherwise would not only be contrary to settled case law of the Court itself, but would also unduly broaden the scope of application of the EU primary liability regime for trade mark infringement.

Keywords: trademarks; marketplaces; C-148/21 and C-184/21; Amazon; Louboutin; CJEU; use of a trademark; platform liability; Article 9 EUTMR

Suggested Citation

Rosati, Eleonora, The Louboutin/Amazon cases (C-148/21 and C-184/21) and Primary Liability Under EU Trade Mark Law (April 8, 2022). (2022) 44(7) European Intellectual Property Review 435-440, Available at SSRN: https://ssrn.com/abstract=4078987

Eleonora Rosati (Contact Author)

Stockholm University, Faculty of Law ( email )

S-106 91 Stockholm
Sweden

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