Sunday, December 12, 2010

GA's Opinion in L´Oreal v. Ebay

Huťko is very excited about the opinion of Advocate General Jääskinen in L´Oreal v. Ebay C-324/09 published this Thursday (9th of December). The case is so complex and deals with so many interesting questions that Huťko deems it even more intriguing reading than Google France C-236/08. So far Huťko has identified these interesting (sometimes hidden) questions:

1. Keyword advertising - What are the conditions for e-auctions sites to purchase keywords in order to promote its service selling trademark products. Pretty much same as for anybody else.
2. Selling unpacked goods - Can the trademark proprietor prohibit selling of his unpacked goods as a exception to exhaustion doctrine? Yes, under some circumstances.
3. Secondary liability - Is there any secondary liability doctrine with the EU trademark law? No.
4. Putting on the market - Is distribution of testers intended not for sale their "putting on the market"? No.
5. Presumption of damage to reputation - Should the damaging effect to reputation be presumed (in relation to exhaustion doctrine)? Yes.
6. Use within the jurisdiction - How do we know whether an electronic marketplace is ‘targeting’ buyers in a certain jurisdiction? In oder words whether there is a use of the trademark within the relevant jurisdiction. Targeting an advertisement to jurisdiction is enough.
7. Hosting safe harbour - Does hosting safe harbor cover eBay? Yes.
8. Future infringements - What are the duties of the e-auction site in relation to future infringements? There is a duty in case of double identity (same infringement and infringer).
9. Injunction against intermediaries - Is there any injunction to prevent future infringements within the EU law? No, but may be available in the national law.

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