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Amazon may be liable for ads by third parties (CJEU)

The Court of Justice of the European Union (“CJEU”) issued a long-awaited decision regarding the advertising of fake Louboutin shoes on Amazon, which considers that the platform can be responsible for trademark infringement carried out by the advertisers it hosts. The action was brought by Christian Louboutin in Luxembourg (C-148/21) and Belgium (C-184/21) in 2019 following the proliferation of paid ads of counterfeit shoes appearing in Amazon search results. The platform considered that it was not responsible for the ads that are displayed since they are generated by third parties.

First, the court found that a party's unauthorized use of a trademark that is identical to another's trademark implies, at least, that the party "makes use" of the sign. Beyond that, the court stated that such use may lead users of the online marketplace to have the impression that the advertisements for the products in question do not come from third parties, but from the marketplace operator, thus giving rise to the “use” of the brand by the market operator.

The court states that advertisements for offers from third-party sellers can mislead consumers, who may believe that the infringing products come from Amazon itself.

This decision is good news for trademark holders, but not so much for e-commerce platforms. Now those aggrieved by counterfeit ads will be able to hold Amazon directly responsible for these infringements instead of having to sue the third party, often based abroad. Actions against ads will become easier to prosecute and compensation more likely to be obtained.

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