Tenant of sales points in market halls falls under 'intermediary' within Directive 2004/48

LITIGATION

Tenant of sales points falls under the concept of ‘intermediary whose services are being used by a third party to infringe an intellectual property right within article 11 of the Directive.

"30. Having regard to the foregoing, the answer to the first question is that the third sentence of Article 11 of Directive 2004/48 must be interpreted as meaning that the tenant of market halls who sublets the various sales points situated in those halls to market-traders, some of whom use their pitches in order to sell counterfeit branded products, falls within the concept of ‘an intermediary whose services are being used by a third party to infringe an intellectual property right’ within the meaning of that provision.

29. The fact that the provision of sales points concerns an online marketplace or a physical marketplace such as market halls is irrelevant in that connection. It is not apparent from Directive 2004/48 that the scope of the directive is limited to electronic commerce. Moreover, the objective stated in recital 10 of that directive of ensuring a high, equivalent and homogeneous level of protection of intellectual property in the internal market would be substantially weakened if an operator which provides third parties with access to a physical marketplace such as that at issue in the main proceedings, on which those third parties offer in that marketplace the sale of counterfeit branded products, could not be the subject of the injunctions referred to in the third sentence of Article 11 of that directive."

Injunctions toward intermediaries who provide letting of sales points in market halls are subject to the same conditions as injunctions addressed to intermediaries in an online marketplace, set out in L’Oreal and Others (IPPT20110712).

"37. Therefore, the answer to the second question is that the third sentence of Directive 2004/48 must be interpreted as meaning that the conditions for an injunction within the meaning of that provision against an intermediary who provides a service relating to the letting of sales points in market halls are identical to those for injunctions which may be addressed to intermediaries in an online marketplace, set out by the Court in the judgment of 12 July 2011 in L’Oréal and Others (C‑324/09, EU:C:2011:474)."

IPPT20160707, CJEU, Tommy HIlfiger v Delta Centre

C-494/15 - ECLI:EU:C:2016:528