Intermediaries in regards of repeated infringements at physical market places

In its decision of July 7th, 2016 the ECJ dealt with the term of intermediaries according to Art. 11 of the Directive 2004/48/EG of the European Parliament and Council on the enforcement of intellectual property rights. It was particularly questionable, whether a lessor of areas of physical market places is to be seen as intermediary, in case he leases market areas to market traders who undisputedly had infringed or risked trademark rights of a third party.

Thus, the ECJ stated clearly that it is already sufficient to fulfil the criteria of being an intermediary for the purpose of the above mentioned directive to offer a service which can be used for infringement of intellectual property rights of a third party. As the latter had happened on the sales areas in question, the lessor was to be seen as the intermediary from the ECJ‘s point of view.

Though the ECJ left open whether providers of further services, such as providers of electricity for market booths being used for infringements, shall be seen under the term of intermediaries according to the directive, the judges stated clearly that a continuous surveillance of customers is not required. Rather, an injunction can be requested obligating the intermediary to take measures supporting to avoid repeated infringements by the same infringer. In this course, a balancing of interests between the interest of rightholders and free trade were to be taken into account, particularly.

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