In April last year, the CJEU was requested to answer prejudicial questions on liability for platforms like Amazon in the case between Coty (a corporation involved in producing many perfumes and fragrances) and Amazon. Coty has many registered trademarks in its portfolio and had noticed that products marked with these trademarks were sold through Amazon. The Court was asked to rule whether or not Amazon could be held liable for any damage resulting from trademark-infringing products being sold on Amazon’s platform. It is important to notice that Amazon is not the seller of these infringing products. Nowadays, Amazon is starting to show similarities to platforms like eBay and AliExpress. Multiple different sellers have the option to sell by using Amazon’s platform and brand awareness. This is comparable to the service Bol.com, a leading Dutch consumer-retail platform, offers. Amazon offers an additional service to sellers, called the Fulfillment by Amazon (FBA) program. This basically means that the sellers’ products are being stored in Amazons warehouse and are shipped by Amazons workers, straight to the ordering customer.
In the case in front of the Court of Justice of the European Union, the Court ruled that Amazon has a ‘Duty of Care’ (in Dutch: zorg-/inspanningsplicht). This duty contains taking preliminary measures to prevent infringing products from entering the market. However, this does not mean that Amazon is liable as a direct interferer. The Court refers the case back to the German Bundesgerichtshof (Supreme Court, in Dutch: Hoge Raad). In this case the Bundesgerichtshof has to rule on the case in particular.
The CJEU and the Bundesgerichtshof both mention interference liability (derdenaansprakelijkheid). Interference liability can be used in cases like an unauthorized upload of a copyright-infringing video on Youtube. Is Youtube to be held liable in a case like this? They are responsible for the platform on which the infringing video can be uploaded, but does that mean they should be responsible for the content on this platform, posted by other people than themselves? In this day and age, questions like these are becoming increasingly important.
Interference liability does not only reach to platforms like Youtube and Facebook, but also to major retail-platforms like Amazon and the Dutch Bol.com. In the case Amazon/Coty, for which the CJEU answered prejudicial questions on behalf of the German Bundesgerichtshof in April 2020, the CJEU and the Bundesgerichtshof both found an obligation on the side of Amazon. This obligation is best described as a ‘Duty of Care’. How far this duty reaches, is dependent on the relevant elements of the individual case. In this case particulary the matter in question was about providing production numbers of the possibly infringing products to the rightful trademark owner, Coty. The effort it would take Amazon to retrieve this kind of information from the sellers would be minimal, according to the court. Therefore, it lies within the responsibility of Amazon to provide information to Coty in order to assist them in combating counterfeit.
Since this has been stated by case law, the question rises if Amazon i.e. has an obligation to prevent trademark-infringing products from even entering the market through its platform. Does the Duty of Care reach so far that Amazon needs to actively pursue the battle on counterfeit? Many people would like to see it this way. However, the measures should be proportional to the effort it would cost Amazon. It is practically impossible for platforms like Amazon to check every product or even every seller on possibly trademark-infringing symbols. Therefore, the Duty of Care for Amazon is not a bad thing, not at all, but this Duty of Care should be limited. Fortunately, the CJEU and the higher courts of Germany agree with me.
Written by: Janco van Kooij