eBay scores victory over Lancôme

The case opposed eBay International AG, eBay Europe SARL and eBay Belgium SPRL (collectively eBay) against Lancôme Parfums et Beauté & Cie. Lancôme, which is part of the L'Oréal Group, markets perfumes and cosmetics. 

 

Lancôme filed suit against eBay on the grounds that:

The injunctive relief sought by Lancôme was directed at the display of 'offers for sale' of (alleged) Lancôme products. In particular, Lancôme required the preventive monitoring of sellers who had sold counterfeit Lancôme goods in the past. In addition, Lancôme sought damages in an amount of €500,000.

 

By way of defence, eBay argued that it was an intermediary service provider within the meaning of Section 4 of the E-commerce Directive (2000/31/EC) and, more specifically, a provider of hosting services under Article 15 of the directive. The directive has been implemented into Belgian legislation.

 

The qualification of 'hosting provider' has the following implications:

In the present case, Lancôme contested eBay's status as a provider of hosting services under the directive.

 

The Brussels Commercial Court held that the exemption under the directive was directed at "a type of services" provided by intermediary service providers, rather than at service providers themselves. Therefore, the juridical qualification of eBay's activities was the central issue of the case. 'Hosting services' are defined in the law as "the storage of information provided by a recipient of the service". A 'recipient of the service' is defined as any person who uses the service, in particular for the purposes of seeking information or "making it accessible".

 

Lancôme argued that eBay's activities did not qualify as hosting activities, as eBay was offering other ancillary services. Therefore, according to Lancôme, eBay's activities went far beyond the mere storage of information. The court held that, under the law, an intermediary service provider which provides hosting services will benefit from the liability exemption in relation to those services. Other activities conducted by the intermediary service provider through its website or the income generated by those other activities are irrelevant.

 

Moreover, the court noted that Lancôme's claim was directed only at eBay's hosting activities (namely, the display of offers for sale), but did not refer to the ancillary services provided by eBay. The court concluded that, with regard to the posting of offers for sale on its website, eBay was to be considered only as a provider of hosting services and, consequently, could rely on the exemption.

 

Lancôme also argued that: 

The court rejected this argument, holding that Lancôme:

In addition, the court also made it clear that eBay was not required to take preventive measures to avoid the reiteration of illicit acts. The court clarified that this position did not provide service providers with total immunity. In the present case, the court emphasized that the mechanisms set up by eBay to fight counterfeiting activities and cooperate with IP rights owners were not artificial. 

 

The court concluded that eBay had behaved in the manner of a normally prudent and diligent e-commerce operator, and rejected all of Lancôme's claims.