Responding to news that the Court of Justice of the European Union has found that Amazon is not liable for unwittingly stocking trade mark infringing goods by third-party sellers, Joel Smith, Head of Intellectual Property at Herbert Smith Freehills, says:
"The CJEU decision means that the idea of extending liability of platforms, such as Amazon, for direct trade mark infringement through stocking products for third parties, has been rejected.
"It is now clear that providing logistical storage services on behalf of seller communities, where the individual sellers may be offering infringing or counterfeit products, does not extend responsibility for the nature of the products sold by an online platform, where it has no knowledge of any infringement. The Court did not regard it as a use of a third party's trade mark.
"However, the more responsibility and control that platforms take for selling and offering to sell products or optimising the sales experience, the more likely they could be found liable for infringing a brand owner's trade mark or being liable as an accessory with the individual seller. Most European courts are now also willing to grant broad injunctions to force platforms to takedown infringing items (and search their sites). Powerful remedies still exist to tackle the sale of counterfeit, look-a-like and infringing products online across the major sales platforms, despite this decision."