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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 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 article ( 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 



This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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, 30 August 2009 . 




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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

Don't miss Iptegrity!  RSS/ Bookmark is the website of Dr Monica Horten. She is a policy analyst specialising in Internet governance & European policy, including platform accountability. She is a published author & Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet Freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and the Caucasus. In a voluntary capacity, she has led UK citizen delegations to the European Parliament. She was shortlisted for The Guardian Open Internet Poll 2012.

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