Abstract/Summary

To police intellectual property rights, IP holders have combined actions aimed towards the direct infringers but also, increasingly, actions directed towards those sites that are providing user-generated content an outlet. In the EU, it is under the auspice of Directive 2000/31/EC of 8 June 2000 on Electronic Commerce (E-commerce Directive) that most assaults, launched by IP owners, have been defended. By contrast to the position in the USA, IP owners are still fighting a bloody war and whilst some battles have been lost, they also emerged triumphant on a number of occasions. This paper reviews a number of decisions relating to the liability of the online auction site eBay, emanating from the German (Rolex), French (Hermès, Louis Vuitton and Christian Dior Couture) and Belgian (Lancôme) courts. The author discusses the potency of Directive 2000/31/EC as a shield against IP owners’ attacks and aims to demonstrate that the French and German decisions are misguided interpretations of Directive 200/31/EC on two main grounds (namely the selective or distributive application of article 14 and the scope of article 15). The author also suggests that intellectual property rights owners may need to draw a new battle plan and deploy their activity towards legislators in order to lobby for a change in the liability regime of online auction sites if they want a real prospect of winning the war.