It is also potentially a welcome relief for eBay following an unfavourable ruling in France in the Louis Vitton case. The general manager of eBay France, Alexander von Schirmeister, described the case as “a big victory for eBay” and “more importantly, a big victory for French consumers".
L'Oreal's contention in France was that eBay should be doing more to actively prevent conterfeit goods bearing L'Oreal trade marks from being sold in eBay. eBay's defence was that they had a procedure (the VERO procedure) for rights owners to report illegitimate sales of goods. They responded promptly when illegal activity was brought to their attention, but did not proactively screen content unless a report was made.
The French Court decided that eBay had put sufficient measures in place and is acting in good faith in its dealing in this area. The Court's view was that a sensible approach was for rights owners and internet hosting providers to work together on this issue, avoiding litigation where possible.
The writer has significant issues with the Louis Vitton decision and its consistency with the E-commerce Directive 2000 (specifically Article 14) - specifically whether this decision impliedly imposes a positive obligation on eBay (and others) to actively monitor third party content on their websites. Hopefully this series of decisions represents a consistent approach towards determining the liability of hosting services providers for illegal actions committed through their websites. Also, the writer hopes it helps to demonstrate to rights owners that collaborating with hosting service providers is preferable to resorting to the Courts at the first opportunity.
L'Oreal is reported to be appealing the French ruling, so sadly this might have some way to go.
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