Court of Justice, Grand Chamber

22 December 2022, Joined Cases C‑148/21 and C‑184/21
(Christian Louboutin v Amazon Europe Core Sàrl, Amazon EU Sàrl, Amazon Services Europe Sàrl , Amazon.com Inc. , Amazon Services LLC)

Reference for a preliminary ruling – EU trade mark – Regulation (EU) 2017/1001 – Article 9(2)(a) – Rights conferred by an EU trade mark – Concept of ‘use’ – Operator of an online sales website incorporating an online marketplace – Advertisements published on that marketplace by
third-party sellers using, in those advertisements, a sign which is identical with a trade mark of another person for goods which are identical with those for which that trade mark is registered – Perception of that sign as forming an integral part of the commercial communication of that operator – Method of presenting the advertisements which does not make it possible to distinguish clearly the offerings of that operator from those of the third-party sellers

Article 9(2)(a) of Regulation (EU) 2017/1001 of the European Parliament
and of the Council of 14 June 2017 on the European Union trade mark must be interpreted as meaning that the operator of an online sales website incorporating, as well as that operator’s own sales offerings, an online marketplace may be regarded as itself using a sign which is  dentical with an EU trade mark of another person for goods which are identical with those for which that trade mark is registered, where third-party sellers offer for sale, on that marketplace, without the consent of the proprietor of that trade mark, such goods bearing that sign, if a well-informed and reasonably observant user of that site establishes a link between the services of that operator and the sign at issue, which is in  particular the case where, in view of all the circumstances of the situation in question, such a user may have the impression that that operator itself is marketing, in its own name and on its own account, the goods bearing that sign. In that regard, the following are relevant: the fact that that operator uses a uniform method of presenting the offers published on its website, displaying both the advertisements relating to the goods which it sells in its own name and on its own behalf and those relating to goods offered by third-party sellers on that marketplace; the fact that it places its own logo as a renowned distributor on all those advertisements; and the fact that it offers third-party sellers, in connection with the marketing of goods bearing the sign at issue, additional services consisting inter alia in the storing and shipping of those goods.

categoria:European Case Law