UPDATE

With its decision in joined cases C-148/21 and C-184/21 – Louboutin v. Amazon, judgment of 22 December 2022 – the European Court of Justice has provided a further milestone in the area of provider liability (Articles 12, 13 and 14 EU Directive 2000/31), in the event of unauthorized use of the trademark by the platform operator.

The Court, referred for a preliminary ruling by the Courts of Belgium and Luxembourg, has sanctioned the potential liability of Amazon, since the e-commerce giant, in the case at hand, would be classifiable as a “hybrid provider”, having induced the final consumer, through targeted communication and advertising strategies in the use of the trademark of the well-known maison, to believe that a commercial and distribution link existed between the trademark itself and the platform operator.

In the case under examination, in fact, Amazon offered third-party goods to the marketplace through the use of the marketplace's organizational network and through the performance of active conduct (including the use of its logo on its and third-party advertisements and the offer of additional services: shipping, delivery and product storage).

The ruling in question, placed in correlation with European judicial precedents on the subject of counterfeiting on online platforms (concept of neutral provider: L'Oréal v. eBay, C-324/09; theory of mere storage: Coty v. Amazon, C-567/18), provides an important jurisprudential precedent and a potential instrument of protection, in the activities of online sales and use of others' trademarks, without the prior authorization of the owner of the right privative.

It is noted that it will be up to the national Courts, that have referred the matter to the Court of Justice for a preliminary ruling, to settle the pending disputes, implementing what the European Authority has ruled.