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score draw in L'Oreal v eBay trade mark case

17 December 2010

The Advocate General (AG) has given his opinion on questions referred by the High Court in the trade mark litigation between L’Oreal and eBay.

L’Oreal argued that in using L’Oreal’s trade marks, eBay (in some cases) directed its customers to infringing goods and that it was involved in the infringements of sellers using its online marketplace.

The AG’s opinion is that on the face of it eBay is not liable for acts of trade mark infringement committed by its customers (since the function of the trade mark should not be affected). However, eBay could become liable, if it was notified of the advertisement or sale of infringing goods, and such infringement by that seller continues or is likely to continue in relation to the same or similar goods.

eBay are said to be pleased with the opinion, though trade mark owners will take comfort from the fact that eBay will have to remove listings for goods of questionable origin and could be liable for future infringement by the same person.

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