Different yet the same? Intermediary liability in physical and online markets

By Paul Maeyaert

The issue of intermediary liability is a hot topic, particularly in the online environment, with decisions in Tommy Hilfiger and Tobias Mc Fadden only intensifying the debate

In an attempt to stem the initial offering and subsequent sale of counterfeit products, rights holders are increasingly invoking contributory trademark infringement claims in both online and offline environments against intermediaries which provide services that facilitate infringements. This tactic makes strategic sense – especially as intermediaries are often best placed to halt infringing activities. Article 11 of the EU IP Enforcement Directive (2004/48/EC) states that member states must ensure that rights holders can apply for an injunction against intermediaries whose services are used by a third party to infringe an IP right, without prejudice to Article 8(3) of the EU Information Society Directive (2001/29/EC), which specifically states the same applies for copyright.

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Issue 71