Trademarks monopolies and internet news

GOOGLE adwords system under the ECJ exam

In the context of the litigation opposing Louis Vuitton to Google with regards to its AdWords system, the French High Court issued a decision on May 20, 2008, where the ECJ is being questioned. The Court in particular asked whether hiring key-words which reproduce or imitate trademarks and generate commercial links can be regarded as being unauthorised trademark use under EC rules. We will monitor what the ECJ states and further report to our readers.

EBAY condemned twice under French practice…

On June 4, 2008, the Court of First Instance of Troyes granted the claim of Hermès International against eBay and an eBay seller with regards to counterfeiting Hermès bags. For the Judge, eBay was offering on-line brokerage activities from which resulted a best endeavour obligation under the Law on Trust for the Numeric Environment (LCEN)..

At the time of the litigation (2006), eBay was regarded as having adopted insufficient technical measures for its users and the IP right owners to have a full information to perfectly identity the authenticity of the auctioned products. eBay was then condemned to 20.000 €.

The process further moved forward on June 30, 2008. Louis Vuitton Malletier, Dior Couture, Kenzo, Guerlain and Givenchy sued eBay for the selling of counterfeiting perfumes but also for infringing their selective distribution networks. eBay was regarded as having the obligation to ascertain that its activities did not lead to illegal situations and was bound to make sure sellers did not make exceptions to selective distribution networks. The Trade Court condemned eBay to pay a total of almost 40 million Euros to the plaintiffs and prohibited eBay from selling and distributing perfumes and cosmetics of the plaintiffs.

… While the US District Court takes opposite position

The US District Court – Southern District of New York took an opposite view to the French approach on July 14, 2008 while ruling the proceeding involving Tiffany and eBay. eBay’s generalized knowledge that some listings are counterfeiting was regarded as insufficiently specific knowledge under the applicable standard, so that eBay was upheld as not liable for trademark infringement. An appeal has been lodged in early August. We will monitor the proceeding and report accordingly.

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