With its new verdict, the CJEU has now applied principles from online trade to the physical world. In the future, operators of marketplaces will have to implement appropriate measures to prevent the sale of counterfeits on their premises.

The new verdict of the Court of Justice of the European Union (CJEU) is based on a case in Prague: Several businesses filed a suit against the operator of a market at which counterfeits of their products were repeatedly offered for sale. A Czech court brought the case before the CJEU, which decided in favour of the complainants. According to the verdict, marketplace operators must actively prevent their marketplaces from being abused for dealings with counterfeit products (Case number C-494/15).

With this verdict, the CJEU followed the jurisprudence in the recent L’Oréal case: The cosmetics firm had filed a complaint against the online dealer eBay because the operator of the internet platform made it possible to buy counterfeit brand products. Here the judges decided that eBay is responsible as an “intermediary” for taking “effective deterrent” measures to prevent the online trade in product and brand imitations on its online platform. These measures, however, musn’t be disproportionately costly.

In the recent case, the CJEU decided that the guideline isn’t limited to online trade, but also applies to real, physical markets. Like online platforms, providers of physical retail spaces are also to be legally regarded as “intermediaries.” Volker Bartels, Chairman of the Action Committee Against Product and Brand Piracy, welcomed the verdict for making it clear to intermediaries that their services may not be abused for violations of intellectual property rights.

The verdict of the CJEU could also be of importance for product and trade expos in the future, according to Katharina Garbers-von Boehm, an attorney at CMS Hasche Sigle in Berlin. “If a marketplace operator learns about product counterfeiting, he cannot close his eyes to the problem, but must act.“

Sources: FAZ, EuGH