The Role, Responsibility and Liability of Online Intermediaries Under EU IP Law

Abstract

For fashion brands, effective enforcement of their rights, including intellectual property rights, is key. Over the past several years, the role of online intermediaries has become central in rightholders’ enforcement efforts, including in the fashion sector. In parallel with this rising prominence, the role and responsibilities of online intermediaries have undergone a significant evolution. On the one hand, safe harbour regimes and, correspondingly, notice-and takedown systems have made their way into the legislation of several countries around the world. On the other hand, a trend has emerged⎯particularly in Europe⎯towards a greater responsibilization of online intermediaries. This has unfolded in two key ways. The first has been through the availability of injunctions against online intermediaries irrespective of any liability thereof: the types and content of such orders have been shaped by courts, also in response to technological advancements and the emergence of new infringing modalities. The second has been the consideration that certain types of internet platforms could no longer or not just be found liable for users’ infringing activities on a secondary/indirect/accessory basis but also on a primary/direct basis: in Europe, that is now the case under both copyright and trade mark laws. This chapter reviews the evolution that all these areas have undergone through case law and legislation alike from an EU perspective and reflects on the role that fashion and luxury companies and conglomerates have had in all of this.