CJEU Determines Extent of Duty for Marketplace Websites to Prevent Trade Mark Infringement

摘要

The CJEU's decision broadly follows the Opinion of Advocate General Jaeaeskinen (December 9, 2010) (see "Top EU Legal Adviser Says eBay Not Liable for Trademark Violations" [25 WIPR 6, 1/1/11]) but has provided further clarification in relation to the hosting exemption under Article 14 of the E-Commerce Directive and in-junctive relief against ISPs. It remains to be seen how the national courts will apply and balance the CJEU's test of a "diligent economic operator" against the fact that there should not be a duty for intermediaries to monitor or uncover the facts and circumstances of potential infringements.