Considering the use of keywords as a trigger for contributory liability of an hosting provider that operates an online marketplace. The ECJ found that an hosting provider cannot benefit from the E-Commerce Directive safe harbours (1) if it has played an active role in relation to the sale activities of the direct infringer, or (2) if it has constructive knowledge of unlawful sales carried out throughout its services. (3) The Court clarified that "awareness" of illegal content can in particular be obtained by a notice that is "sufficiently detailed and adequately substantiated". A hosting service provider may thus have to act (by removing or disabling access to content) following the receipt of a notice. A notice may concern any type of illegal content. (4) The ECJ interpreted Article 11 of the Enforcement Directive as...
Self-Regulation/Voluntary Agreement/Code of Conduct
This European Protocol signed between major rights-holders and internet platforms on the online sale of counterfeit products requires, in addition to a notification and take-down procedure, action against repeat infringements as well as proactive and preventive measures.
In this case, the CJEU applied the internal EU Brussels I regulation to assess the relative jurisdiction and authority of EU Member State courts in two cases involving contracts for online travel booking. The CJEU defined a targeting-based test for jurisdiction over Internet entities in this situation, and said that mere accessibility of a website is not sufficient to create jurisdiction. In the Court's words, "In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader...
Considering the contributory liability for trademark infringement of an hosting provider auctioning words corresponding to the plantiffs' trademarks while operating an online advertising service. The ECJ found that the provider does not infringe trademark law by allowing advertisers to purchase potentially infringing keyworks trough their services. In particular, (1) a provider, which (a) stores, as a keyword, a sign identical to a trademark and (b) organizes the display of advertisements on the basis of that keyword does not use the sign within the meaning of trademark law. (2) Additionally, the safe harbors provided by Directive 2000/31/EC apply if the service provider (a) has not played an active role that gives it knowledge of, or control over, the data stored or (b) having obtained knowledge of the unlawful nature...
Article 11 states that "Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC."