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The law suit of L'Oreal v eBay could result in an onslaught of rights-holder litigation against ISPs, according to a UK copyright lawyer. It all depends on what the European Court of Justice decides.

Is the L'Oreal v eBay law suit holding holding a perfumed gun at the ISPs heads? The case of L'Oreal v eBay was heard in the UK High Court in May this year, and the judge made a referral to the European Court of Justice on some key questions related to the case. In particular, the UK court asked the ECJ for an opinion on the matter of eBay's liability in respect of alleged trademark infringements.

According to a report on the Out-law.com website, a UK copyright lawyer believes that if the ECJ were to

decide that eBay could be liable, it could catalyse a raft of injunctions being against ISPs, demanding that they enforce copyright against their own users.

In the UK courts, L'Oreal accused eBay and a number of eBay sellers of trade mark infringement by offering L'Oreal products for sale on the eBay website. The decision went against the individual sellers, but in eBay's favour in that the judge ruled that eBay is not liable for infringements by eBay users. The case relied on Article 11 of the IPR Enforcement directive, that where someone is found to have infringed a trademark, the court may order them to stop trading, and fine them if they do not comply

The question for the ECJ is whether eBay can be held liable for the actions of traders on its website, even though eBay itself would be entirely innocent of the infringement. The case has yet to be heard, and there is no information concerning it on the ECJ website.

However, a possible outcome has been previewed by Iain Connor, an intellectual property lawyer of the international law firm Pinsent-Masons. He was commenting on the UK government's plans to use automated sanctions (technical measures) against file-sharers. The plans have been anounced within the Digital Britain policy initiative and the P2P Consultation.

In Mr Connor's opinion, if the ECJ decides in L'Oreal's favour, the rights-holders would simply file injunctions against ISPs on the basis of the judgement, rendering the UK government's policy 'irrelevant':

"If the ECJ says injunctions can be granted, in this case to prevent the sale of counterfeit cosmetics, the proposal in respect of ISPs may be irrelevant because right holders will simply obtain injunctions against ISPs to prevent unlawful file-sharing," .

It is noteworthy that he fails to differentiate the status of web hosting companies and Internet Service Providers under EU law. eBay is covered under the web host status and is not an ISP. The ISPs are 'mere conduits' and have no legal liability for the content they carry. Mere conduit also protects Internet users against discriminatory practices by ISPs.

It is also noteworthy, that he suggests that a court verdict could over-rule public policy decisions. Moreover, his comments do not take into account the EU Telecoms Package and Amendment 138, which says that users may not be sanctioned without a judicial ruling in respect of their individual case.

Nevertheless, it would be consistent with rights-holder behaviour to try some form of litigation against ISPs, if the ECJ were to decide that eBay could be liable. The ECJ holds the fate of many Internet users in its hands.

Read the Out-law.com article (Out-law.com is published by Pinsent-Masons).

Read the L'Oreal v eBay UK court verdict.

If you are not familiar with the EU Telecoms Package, please see my articles elsewhere on iptegrity.com

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) L'Oreal v eBay - a perfumed gun, http://www.iptegrity.com 30 August 2009 .

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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor, with expertise in online safety, technology and human rights. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

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