Wednesday, October 28, 2015

New CJEU Case On Injunctions Against an Operator of an (Offline) Marketplace

UKIPO informs that the Supreme Court of the Czech Republic just referred the following questions to the Court of Justice of the European Union (Tommy Hilfiger Licensing C-494/15):

Is a person with a lease of premises in a market, who provides stalls and pitches on which stalls may be placed to individual market-traders for their use, an intermediary whose services are used by a third party to infringe an intellectual property right within the meaning of Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights?

Is it possible to impose on a person with a lease of premises in a market, who provides stalls and pitches on which stalls may be placed to individual markettraders for their use, measures, as provided for in Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, under the same conditions as those formulated by the Court of Justice in its judgment of 12 July 2011 in Case C-324/09 L’Oréal and Others v eBay and Others with regard to the imposition of measures on the operators of an online marketplace?
This sounds like a very interesting case. The website of the Czech Supreme Court unfortunately does not contain any detailed information at this point, so I need to file a formal request for information. I will report more details as soon as I obtain them. In any case, from the questions referred, I consider the second to be a more interesting one. Unlike some other esteemed colleagues, I don't have a slightest doubt that the CJEU will accept that even an operator of an offline market place is an intermediary in sense of Art. 11 of the Enforcement Directive. In Frisdranken, one of the Advocates General already accepted that even an offline intermediary such as technical manufacturer who fills cans with the beverage can be seen as such an intermediary.

Stay tuned!

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