The Louboutin/Amazon cases (C-148/21 and C-184/21) and primary liability under EU trade mark law

· trade marks,Louboutin,Amazon

Last year The IPKat reported on a new referral to the Court of Justice of European Union (CJEU) from Luxembourg’s Tribunal d’arrondissement, asking whether the operator of a hybrid marketplace could be considered directly liable for trade mark infringement due to the presence of third-party listings of infringing goods on its platform.

That referral (C-148/21) has now been joined to another one (C-184/21) made in separate but highly similar proceedings pending between the same parties (Louboutin and Amazon) before the Tribunal de l’entreprise francophone de Bruxelles.

In a nutshell, these joined cases are asking the CJEU to determine whether and, if so, at what conditions the operator of an online marketplace may be found liable under Article 9(2) of the EU Trade Mark Regulation 2017/1001 (EUTMR) for the display of advertisements and the delivery of infringing goods that are offered for sale and placed on the market upon the initiative and under the control of independent sellers that avail themselves of that operator’s services.

I have now written a longer article on these referrals, which will be published later this year by European Intellectual Property Review and can be in the meantime read on SSRN here.

The broader relevance of the referrals