Trade Marks and E-Commerce: L'Oreal and Interflora
i) Were the goods sold by the Fourth to Tenth Defendants infringing goods? This issue divides into four sub-issues concerning (a) counterfeits, (b) non-EEA goods, (c) tester and dramming products and (d) unboxed products.
ii) Are eBay Europe jointly liable for any infringements committed by the Fourth to Tenth Defendants?
iii) Are eBay Europe liable as primary inf ringers for use of the Link Marks in relation to infringing goods?
iv) Do eBay Europe have a defence under Article 14 of the E-Commence Directive?
v) Do L'Oréal have a remedy under Article 11 of the Enforcement Directive?
vi) Are the Distance Selling Regulations relevant to any of the foregoing issues, and if so how?
i) The fourth to tenth defendants had infringed the claimants' trade marks. In the case of the fourth to eighth defendants the goods they sold were put on the market outside the EEA and L'Oréal did not consent to those goods being put on the market within the EEA. In the case of the ninth and tenth defendants the goods they sold were counterfeits.
ii) Whether the sale by sellers on the Site of testers and dramming products and of unboxed products amounts to an infringement of the trade marks depends upon questions of interpretation of the Trade Marks Directive as to which the law is unclear (see paragraphs 319-326 and 331-342 above). Although these questions are academic so far as the acts committed by the fourth to tenth defendants are concerned, they are potentially relevant to the question of what relief, if any, L'Oréal are entitled to. Accordingly, guidance from the ECJ was required on these points.
iii) eBay Europe are not jointly liable for the infringements committed by the fourth to tenth Defendants.
iv) Whether eBay Europe have infringed the claimant's trade marks by use in sponsored links and on the eBay site in relation to infringing goods again depends upon a number of questions of interpretation of the Trade Marks Directive upon which guidance from the ECJ is required (see paragraphs 388-392, 393-398 and 413-418 above).
v) Whether eBay Europe has a defence under art 14 of the E-Commerce Directive is another matter upon which guidance from the ECJ is needed (see paragraphs 436-443 above).
vi) As a matter of domestic law the court has power to grant an injunction against eBay Europe by virtue of the infringements committed by the fourth to tenth defendants, but the scope of the relief which art 11 requires national courts to grant in such circumstances is another matter upon which guidance from the ECJ is required (see paragraphs 455-465 above).
i) selecting the Interflora Signs as keywords;
ii) nominating the Interflora Signs as keywords;
iii) associating those keywords with M & S's URLs;
iv) setting the cost per click in relation to those keywords;
v) scheduling the timing of the display of M & S's sponsored link; and
vi) using the Interflora Signs in business correspondence relating to the invoicing and payment of fees and/or the management of an AdWords account.