In June 2008, the Paris Commercial Court had ordered eBay to pay damages of 38.6 million Euros to the luxury group LVMH, ruling that the auction sales platform, as a broker, was liable under ordinary law as result of the sale of infringing products on its platform. On 13 May 2009, the Paris Civil Court ruled the opposite in favor of eBay. In this case, L'Oréal claimed eBay should not benefit from the hosting provider protective status under French law, as its activities went beyond a mere technical hosting service. eBay argued, however, it merely hosted items put up for sale by users of its auction sales platform, and therefore had no general monitoring obligation.
In its judgment of 13 May 2009, the Court ruled that eBay's activity consisting in storing the listings prepared by vendors and making them available online was a hosting activity, benefiting from the hosting provider protective status. Yet, the Court suggested that the parties had recourse to judicial mediation, in order to cooperate and agree on measures to be implemented to put an end to the sale of counterfeit products on the auction sales platform. With regard to eBay's advertising activities, the Court considered that the platform could not benefit from the hosting provider protective status, since its role was no longer passive, and such activities were not essential to the hosting activity. The Court nevertheless held eBay not liable, since L'Oréal did not clearly establish the alleged infringement.
Paris Civil Court, 13 May 2009
Source: T LAW ALERT - No. 2009/03 - GIDE LOYRETTE NOUEL A.A.R.P.I.