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Published: 2019

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ISBN-13: 9789291562664

Online intermediaries bring together or facilitate transactions between third parties on the internet, and can bring great benefits for European businesses. However, intellectual property rights (IPR) infringement may also be facilitated by the use of services from intermediary service providers. European Union lawmakers have prepared a framework for the obligations and liability of intermediaries. Notably, EU law provides that rights holders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe IPR. The conditions and procedures relating to these injunctions, however, should be left to the national law of the Member States. In addition, according to the most recent Copyright in the Digital Single Market Directive, certain platforms can perform a communication to the public. Courts have referred to the provisions of different EU instruments and to national law to determine the scope of the obligations and liability of intermediaries. This EUIPO case-law collection presents some of the latest jurisprudential developments in this fast-evolving area. It also gives an overview of the different criteria and the legal reasoning applied by courts in the European Union, and of the main conclusions or outcomes of selected cases. Relevant and important decisions of the Court of Justice of the European Union (CJEU) and national courts, issued between 2016 and the beginning of 2019, have been included. A total of nine preliminary rulings were taken into account, as well as 34 judgments from courts in 14 Member States, namely the Czech Republic, Denmark, Germany, Ireland, Greece, Spain, France, Italy, Lithuania, the Netherlands, Austria, Poland, Sweden and the United Kingdom. The CJEU has given guidance on the criteria for liability in cases of alleged online IPR infringements, notably of copyright and related rights, as well as trade mark rights. In a number of preliminary rulings, the CJEU shed light on the notion of 'an intermediary'. It clarified the conditions for exemptions from liability and the scope of the obligations of different types of intermediaries for third-party infringements under the Electronic Commerce Directive, the Enforcement Directive and the Information Society Directive. In addition, the CJEU has clarified, to a certain extent, if and under what circumstances different types of intermediaries, and other parties, can be considered to have made a communication to the public in the sense of Article 3 of the Information Society Directive. Around half of the national court decisions relate to injunctions granted against internet access providers to stop and/or prevent infringements by third parties. Some of these decisions also imposed injunctions on search engines. In cases collected from nine Member States, judges have elaborated.