Amazon and other hybrid platforms liable for trademark infringement?

On 22 December 2022, in the case of Louboutin v Amazon[1], the Court of Justice of the European Union (CJEU) issued an important ruling on the trademark infringement liability of hybrid platforms. Hybrid platforms, such as Amazon, not only offer products themselves - as retailers - but also open their electronic marketplace to sales partners, who offer products for their own account. The products offered by the platform itself are often intermingled with those offered by partners. The platform also often provides fulfilment services such as storing and shipping products for the sales partner.

Louboutin is a famous French designer and best known for his high-heeled women's shoes with red soles. Louboutin regularly takes action against copies of its shoes offered by Amazon partners on platforms such as Amazon.

In proceedings in Luxembourg and Belgium, the question arose as to what extent Amazon itself could be liable for trademark infringement for these offers as Amazon does not sell the infringing shoes itself and would at most the party overseeing the electronic market place. On this, the Belgian and Luxembourg courts, as it concerns EU law, have referred questions of interpretation to the CJEU.
 

Earlier, in a dispute between Coty and Amazon[2], the CJEU found that Amazon would not itself be liable for trademark infringement of products offered by partners, even though Amazon provided so-called fulfilment, consisting of storage and shipping, for those partners.
 

The Court now appears to be reversing this judgment.
 

The Court found that, under circumstances, an operator of a hybrid platform, such as Amazon, which integrates an online marketplace in addition to its own sales offers, may also be deemed to use the infringing trade mark itself (and thus may itself be liable for the marketing of infringing products), even if the product is offered by a partner of Amazon.

That situation arises, according to the Court, if it is actually not clear to the average consumer whether it is Amazon or the sales partner offering the infringing product. A relevant circumstance here is that Amazon's products and sales partners are simply presented interchangeably, and Amazon advertises both types of offers and displays the Amazon logo in the ads. The fact that Amazon also offers fulfilment services, such as warehousing and shipping, for the products offered by the sales partner reinforces the consumer's impression that the products come from Amazon.
The ruling is welcomed by trademark owners, who will find it easier to take action against the marketing of counterfeit and parallel-imported products on online marketplaces.