Amazon may be liable for trademark infringement after a European Court decision

The European Court has ruled in joined cases C‑148/21 et C‑184/21Christian Louboutin v Amazon

The main issue that focuses our attention, in this case, is whether Amazon can be liable for unauthorized use of trademarks shown in ads of third parties.

As it is well-known, Amazon is the biggest online retailer in the world offering a myriad of goods, directly or through third parties that use Amazon’s platform to sell their products.

The problem arises when these third parties offer fake goods bearing trademarks of other companies without permission and promote them through Amazon ads.

Several months ago, the Advocate General of the EU Court Maciej Szpunar gave its opinion that in such a situation Amazon is not liable for ads that infringe other trademarks, because the company does to use these marks itself.

The European Court, however, disagreed with the Advocate General, and conclude that Amazon may be liable for trademark infringement related to such ads.

The reason for this is the fact that Amazon itself uses ads to promote the same, but original, goods. These ads are very similar to those used by third parties but for fake goods. Thus it is difficult for consumers to make a distinction between the ads which in turn can lead to misleading about the fact that the fake goods can originate from Amazon. From that perspective, Amazon can be held liable for unauthorized trademark use.

In addition, the possible confusion between the ads is enhanced by the fact that Amazon is often involved in the storage, shipping, and management of returns for third-party products on its sites.

Source: Marks & Clerk – Megan Rannard for Lexology.

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