Some headlines are reporting that L’Oreal lost its trade mark infringement action in the UK against eBay. For example: here, here and here.
The basic facts were that L’Oreal was suing eBay for trade mark infringement as a result of hosting auctions in which vendors were alleged to be selling counterfeit L’Oreal products.
It seems that most of the vendors turned out to be selling parallel imports – imported from outside the European Economic Area – and so they were infringing BUT …
the IPKat reports Arnold J didn’t exonerate eBay, rather his Honour has referred some questions to the European Court of Justice. There may well be a lot more to emerge about Arnold J’s ruling itself – as you’ll see from the IPKat’s update, there are at least 482 paragraphs to scramble through (put our Federal Court to shame (thankfully!)).
iii) eBay Europe are not jointly liable for the infringements committed by the Fourth to Tenth Defendants.
iv) Whether eBay Europe have infringed the Link Marks by use in sponsored links and on the 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 have a defence under Article 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 Article 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).
L’Oréal v eBay  EWHC 1094 (Ch)
Meanwhile, you’ll recall that Dowsett J held that a market operator is not liable for authorising trade mark infringement when stall holders sell counterfeit products from their stalls.
Louis Vuitton Malletier SA v Toea Pty Ltd  FCA 1443
So far as I am aware, this didn’t go on appeal. Therefore, you have to bring such allegations within the common law tort of concerted action or ‘procuring or directing’.