Amazon liable for third-party sales

Amazon's online platform features a mix of ads. On the one hand, advertisements of products offered by Amazon itself, and on the other, third-party advertisements (the hybrid model). It is unclear whether the products are sold by Amazon or by someone else, because the ads are mixed.Third-party sellers often offer counterfeit products. Amazon takes the position that, as a neutral platform, it is not responsible for this. If infringement is reported, the concerned ads are removed immediately.

 

Louboutin has a position mark for its stiletto with red sole. On Amazon, several (fake) stilettos with red soles can be found infringing this. Louboutin deems Amazon responsible for this, due to the way it advertises.

The court seems to agree. With a hybrid online platform, however, the hosting party may be liable. By placing uniform advertisements interchangeably, it may remain unclear to consumers whether or not the products come from the operator. This is reinforced by the use of the Amazon logo in all ads, since Amazon handles storage and shipping.

In order to avoid liability as an online platform, clear distinctions must be made between ads for own and third-party products.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?