Amazon features a mix of products. Some are offered on this marketplace by Amazon itself, but the same products are also sold by third-party sellers. Amazon offers such third-party sellers support for, among other things, shipping, warehousing and returns of products offered on Amazon. This hybrid business model got Amazon into trouble.

Christian Louboutin, the designer of the famous women's red-sole shoes, held Amazon responsible for selling infringing shoes on the platform. Louboutin sought a trademark infringement injunction. Amazon pointed out that it did not offer these infringing shoes itself, but that this was done by other sellers. Amazon also had no specific knowledge of the offering of these products, thus did not use the trademark itself and was not liable for it. Says Amazon.

The Court of Justice gives a specific rule for the specific situation of a hybrid marketplace: if the Amazon user thinks that Amazon is offering the products itself or is actively involved in them, smells Amazon's trademark itself and thus an infringement claim can also be made against Amazon. The Amazon user might think this because the Amazon logo appears with sales offers and ads, or because of the extra service Amazon offers to sellers on the Amazon marketplace.

If a hybrid marketplace such as Amazon does not want to be held responsible for IP infringements by third-party sellers, the platform had better clearly articulate that those products are offered by third parties, so the platform cannot therefore be held responsible for those offerings.

The older case law on online marketplaces, such as L'Oréal/eBay, remains important: it deals with ‘traditional’ online marketplaces, on which only third parties operate.

Mathijs Peijnenburg

29 March 2023