The European Court of Justice (ECJ) has ruled that eBay can be held liable for the offer for sale by third parties of trademark-infringing goods on its site if it took steps to actively assist those third parties or if it knew or should have known of the infringing activity and did nothing. It also held that eBay could be liable for its own use of trademarks as keyword search terms to generate ads on search engines, if those ads do not allow an Internet user to easily determine whether the goods referred to in the ads are offered by the mark owner or someone else. And perhaps most importantly, the court held that national courts can issue injunctions requiring an online marketplace like eBay to alter their sites to make it easier to identify sellers in order to deter future infringements and give trademark owners an effective remedy. Though the courts of each member state will have to determine how to apply these principles in particular cases, it seems almost certain that Internet marketplaces may be exposed to significant potential liability unless they alter their approach to policing trademark infringements.
© Copyright 2011 Steptoe & Johnson LLP