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L’Oreal v Ebay

[2011] C-324/09

Case summary last updated at 01/02/2020 20:10 by the Oxbridge Notes in-house law team.

Judgement for the case L’Oreal v Ebay

D (Ebay) purchased various keywords on Google AdWords which were identical to trade marks owned by C (L’Oreal) over its perfumes. C alleged that D had infringed C’s trade marks, by: i) advertising the unauthorised offers for sale via keywords; and ii) allowing the sales to go ahead on its website at all. Held:
 
Keywords
·       Fact that D is using keywords to advertise someone else’s goods (and not his own) does not stop use falling under Article 5(1)
·       In present case:
1)     D’s use of mark to advertise its own service of providing a marketplacedoes not fall under Article 5(1)
-        i.e. as the provision of a marketplace is not an ‘identical or similar’ good or service
2)     However D’s use of mark to advertise goods which D’s customers are selling on its marketplace falls under Article 5(1).
·       Thus in latter case, is infringement if advert falls foul of one of two conditions in Google France/Portakabin
 
Display of Goods on Website
1)     Merely allowing customers to display trade marks on the marketplace is not a ‘use’ of trade mark for purposes of Article 5(1)
Ø  i.e. identical/similar goods
2)     However this conclusion does not rule out possibility that operator of marketplace may be liable under article 5(2)
Ø  i.e. unfair advantage/detrimental to distinctive reputation

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