E-commerce and Infringement of Intellectual property rights, injunctions against intermediaries |Europe

In case intermediaries are not responsible under tort law°, they are still obliged by injunctions to provide assistance. This logic may appear a bit weird. As how can an intermediary who has not committed any infringement against law, be obliged to do something through an injunction?

The idea behind an injunction actually is to make a correction for a behavior that caused indirectly a damage. But that still means that there is a link even though indirectly between the act of the intermediary and the result but this differentiation seems not to be followed by law. The situation appears more likely to be ranged as a direct and indirect case of liability.

The Court of Justice of the European Union (CJEU) recently confirmed  in the case  of Tommy Hilfiger Licensing LLC and others versus Delta Center that an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right applies not only in the online environment but extends to the physical world. Intermediaries should be aware of this liability and seek appropriate insurance.

For further info please contact us on info@a-law.eu.

A-Law International department is closely following the sectoral regulations on e-commerce and the ICT sector. In general our regulatory compliance services comprehends the contractual regulatory B2B and B2C, the regulatory pertaining to the activity and service providers (including supervisory authorities) and the soft law such as code of conducts.

As IT services can be very broad, it is important to obtain a precise scope of the activity and the sector to which it relates as different sector regulations may apply. The author followed a specialized course on e-commerce.

•  art 8(3) of the Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society and art 11 of the Enforcement Directive(lll)

Art 8 (3):"Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright".

Art 11:"Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.