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avocats d'affaires paris

    14/05/2012 - Richard Milchior comments the eBay /LVMH case of the French Supreme Court for Managing IP

    14 May 2012

    Emma Barraclough, London

    France’s highest court has ruled in the latest round of a battle between online auction site eBay and luxury goods company LVMH

    The ruling could result in a smaller fine for eBay – but it does offer some hope to brand owners to want to sue internet platforms.

    The Paris-based Fashion house has fought a number of battles with eBay over sales of both fake and real goods on its website. In 2008, the Tribunal de Commerce ordered eBay to pay LVMH €38.5million (then $49.6million), but the sum was reduced to €5.7million ($7.3million) in 2010 by the Paris Court of Appeals.

    On May 3, the Cour de cassation, the commercial court within the French Supreme Court, ruled that the lower court had been right to decide eBay’s liability in respect of sales of goods through its French and British websites, but had not properly justified its decision to take into account the activity of its US .com site.

    Richard Milchior, a lawyer with Granrut Avocats, said the Cour de cassation believed the Paris Court of Appeal had justified its decision to take into consideration the fact that French internet users were encouraged to use the English language ebay.co.uk<http://ebay.co.uk> site to widen their search for products, and that the two sites complemented each other.

    He added that the Paris Court of Appeals will now fix the final amount of damages eBay must pay and could reduce the amount yet further from the 2010 decision. The ruling will be made by judges who are new to the case.

    But the May 3 decision is not all good news for eBay. The Court also confirmed the lower court’s ruling that the online auction house did not qualify for protection from liability under the ecommerce directive because its role went beyond that of a mere host.

    The question of who and what constitutes a host for the purpose of EU law was considered by Europe’s top court in the Google and L’’Oréal cases (the latter against eBay). Milchior said the French court reconfirmed those decisions and set out the different ways in which a party can be held to have an “active” role in an online auction.

    Brad Spitz of YS Avocats agreed. “The Supreme Court considers that eBay has an active role in its online marketplace, since it uses optimisation means for the transactions that it puts at the disposal of the sellers, sends unsolicited messages to the buyers to invite them to buy, and sends invitations to the unsuccessful bidders for them to participate in other offers.”

    He added that one of the most important aspects of the ruling is that ebay.uk<http://ebay.uk> was not protected from liability – unlike ebay.com<http://ebay.com> in this case.

    “This ruling means that every brand owner suing a .com will have to prove not only accessibility in France but also the fact that the website is aimed, at least partially, at consumers located in France,” Milchior told Managing IP. “This creates a big evidentiary issue but seems a way to apply CJEU case law from a correct legal and practical point of view.”

    But he warned owners of .com domains not to be complacent about their sites : “[They] should not think that this ruling protects them from the French courts if the website is aimed at the public in France or if they encourage the French public to visit the .com. The ruling is both a good and bad thing since it does not bar a trade mark owner from suing a .co.uk website or even a .com site – but it does increase the evidentiary burden.”

    He added that brand owners should request the Court to order the losing party to pay its legal fees – if the site is financially viable enough to make such an order feasible.

    eBay was advised by SCP Boré et Salve de Bruneton, LVMH by SCP Hémery et Thomas- Raquin. 

    Source : www.managingip.com


Richard Milchior