Hi everyone, our trademarks class got me thinking about this EU ruling on Amazon from last year. The issue started when a cosmetics company requested that Amazon hand over some knock-off goods. Amazon complied in part, but also refused to reveal the identity of a seller who was listing the goods. The cosmetics company sued Amazon to cease stocking or dispatching the knock-off goods altogether. Eventually, an EU court of appeal ruled that e-commerce platforms like Amazon are not liable for trademark infringement if they simply provide a selling platform, store, and dispatch goods, without knowledge of trademark infringement.
A lot of knock-off products get sold on Amazon, so I thought it was interesting the EU court decided not to hold e-commerce markets more liable. I understand the view that Amazon is just an intermediary, but I think we should also consider the broad platform they often provide for trademark infringement and the profits they make off that platform. The knowledge requirement is interesting. At what point should Amazon be able to simply turn a blind eye to trademark infringement? Amazon has stated they are strengthening processes to handle trademark complaints, but there is still little accountability on their part.
Should Amazon be liable for trademark infringement when they list, store, and ship knock-off goods? Should they have a duty to perform some due diligence? Should they have to reveal the identity of the sellers behind those goods?
Communications Law
I’m curious as to how the EU would act if this was a physical consignment store. Their entire business model for Marketplace sellers is dependent on there being no human intervention, so I imagine they will strongly resist any measures that result in a need for manual review work that they cannot effectively contract out offshore.