EBay and other online marketplaces will be liable for sellers' trademark infringements if they promote infringing sales or help sellers to "optimise" their pages, the European Court of Justice (ECJ) has ruled. In one of many cases dealing with how online marketplaces should deal with trademark infringement, the ECJ has said that …
Give them even more excuses to put the fees up more and put in more draconian regs for sellers. It's just not worth bothering eBay any more, it was hard enough for casual sales before all this latest crap, it's nigh impossible to get rid of bits to make some pocket money. I shan't bother, just take it up the local charity or down the local dump in future!
Hmmm, turning a tidy profit by copping a percentage of the bunce generated could be seen to qualify there.
It'd be terribly difficult to imagine a large business that didn't make any effort to analyse and monitor its revenue streams but instead just sat back, crossed its fingers and watched the anonymously sourced cash roll in.
Also "promote infringing sales" is an interesting one. If you go to eBay's perfume bit, select a specific brand and some of the offers are fakes, does that mean eBay itself is effectively promoting the fakes as being the brand......?
File under worms / can of.
turning a profit
"Hmmm, turning a tidy profit by copping a percentage of the bunce generated could be seen to qualify there"
I would suggest that turning a profit is insufficient in itself to cause the loss of the protective shield of Art. 14 of the eCommerce directive (2000/31/EC), for a couple of reasons:
Firstly, Art. 14 provides a shield to providers of certain information society services. "Information society services", within the context of EU communications law, includes within its definition that an information society service is a service "normally in return for remuneration". If an information society service should be provided "normally in return for remuneration", but that turning a profit rendered the protection of Art. 14 void, it would seem to only protect business which charged, but which were not commercially successful.
Secondly, in the Louis Vuitton v. Google case (C-236/08), the European Court held that, in respect of Google's operation of its AdWords programme, "... the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31."
The law is an ass
Ebay can NOT be held responsible for what people sell on it. It would be akin to saying a carboot organiser has to inspect every piece of tat at a car boot sale.
The whole idea is stupid and proves how stupid these drunk robed senile idiot old farts are.
Have you misread the decision?
This is not what it says at all?
Even if you only read the summary on here, it's clear: "the ECJ has said that marketplaces are not responsible for infringement when all they do is allow third parties to display infringing goods for sale on their site."
Your carboot analogy stands - the organiser would not be liable.
If, however, the carboot organiser put up signs saying "buying fake [Chanel] handbags here", it's more likely that they are doing something wrong - and that's the view of the court here, too.
This is nothing new - it's been around since 2000, when the eCommerce directive was passed. If a provider is not aware of an infringement, or circumstances from which an infringement would be apparent, it cannot be found liable. If, once aware, it fails to take action, it can be found liable - it loses it shield. There is no obligation on an ISP to inspect every bit of tat - but, if it does, it needs to ensure it inspects well, to mimise risk.
So Channel phone ebay and say theres fake perfume on your site... are ebay expected to trawl through each listing, visiting each person selling and asking for proof of genuine purchase?
After the call ebay are 'aware' so I assume they are liable?
If I phone up a car boot organiser and say someone on your giant 2000 car carboot sold me a dodgy bottle of perfume do they have to run around and check every stall?
set up an account recently. i have soem old phones to sell
you are now limited to 2/3 items from a category. with a wait of 30 days before you can sell more. how stupid?
add that with the fact anyone can press BUY and not pay for it meaning you use up one of those limits. you have to spend an hour on chat to get them to allow another one.
ebay, what a pain in the arse!
Any Sony Z5's in your old phones?
There are other auction sites now, try looking at them. Ebay has started introducing rules so it can charge companies more than individuals. Personally I think they are shooting themselves in the feet here, moving website preference isn't that difficult and people do..... myspace, friends reunited, many search engines... have all found out to their cost. Just because ebay is flavour of the week doesn't mean it will always be so.
One easy win
Can they stop the practice of sellers advertising stuff as "Stainless Steel diver's watch NOT Rolex, Seiko, Omega" just to get the item to appear in search results for the real thing?
You can already stop that stuff appearing ...
Just add "-not" the search clauses. Disco.
"when it provides assistance which entails, in particular, optimising the presentation of the online offers for sale or promoting those offers"
How wide are the definitions of 'providing assistance' and "promoting offers"? I'm sure you could find a lawyer willing to argue that the search system provides assistance and allowing the user to search for specific price ranges is promoting the cheaper fake goods over the genuine items.
"tell that sales were unlawful"
"if "a diligent economic operator" should have been able to tell that sales were unlawful"
Could also be interpreted as "items sold at significantly less that manufacturer's RRP must therefore be assumed fake or unauthorised". This is all part of the process of ensuring that selling certain premium goods at a discount is illegal. Don't forget, for these guys, "not bought through official channels" == "fake".
Globalisation is for them, not us.
"if "a diligent economic operator" should have been able to tell that sales were unlawful and it did not put an end to the sales."
And have the court bothered to define a test for the fact that the operator "should have been able to tell that sales were unlawful". By what criteria will this be tested? I am often suspicious of sales on ebay and other sites, mostly on the "too good to be true" test. However I don't see how they can actually define a set of criteria beyond that.
For example if something looks like a genuine L'Oreal product and the description gives no clue to the fact that the product is a forgery how do they decide the operator "should have been able to tell the sales were unlawful"?
Remember European law deals in administrative certainty. What you are doing is either defined as legal or illegal and this sounds like a huge grey area to me.
It's called keyword spamming...
... and has been banned on Ebay ever since I joined 8 years ago. Even using 'not' doesn't make it legal. If you see it, report the listing - they may not do much but sometimes you get a result.
And quite rightly so
If file sharing sites can be responsible for the connections they make and subsequently prosecuted / fined / shut down for allowing data to be looked up on their servers but retrieved from locations outside of their control then Ebay is certainly no exception to this rule.
You can't have one rule for Napster and another rule for Ebay.
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