L’Oreal argued that in using L’Oreal’s trade marks, eBay (in some cases) directed its customers to infringing goods and that it was involved in the infringements of sellers using its online marketplace.

The AG’s opinion is that on the face of it eBay is not liable for acts of trade mark infringement committed by its customers (since the function of the trade mark should not be affected). However, eBay could become liable, if it was notified of the advertisement or sale of infringing goods, and such infringement by that seller continues or is likely to continue in relation to the same or similar goods.

eBay are said to be pleased with the opinion, though trade mark owners will take comfort from the fact that eBay will have to remove listings for goods of questionable origin and could be liable for future infringement by the same person.

Posted by Emma Tuck, who specialises in Intellectual property disputes relating to patents, trade marks, designs and copyright; non-contentious intellectual property matters including advising on licensing, assignment, confidentiality and collaboration agreements

Emma Tuck
0121 237 3908
etuck@brownejacobson.com

Mr Barrett had faced a maximum fine of up to £50,000, or jail time. He pleaded guilty after an investigation by North Yorkshire Trading Standards. He stated that he was not aware he was committing a crime. 

Though the prosecution is to be commended, the size of the penalty, combined with the admission by the authorities that shill bidding is difficult to prosecute, means that without more action being taken, this conviction alone is unlikely to deter future shill bidders.

So do you think that chasing internet crime is a good use of Trading Standards meagre resources – or should they be concentrating on the real risks to consumers like sale of dangerous toys or flammable furnishing?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

On this occasion, the issue making the headlines is the proposed “Clause 17”, a provision which would enable the Secretary of State, Lord Mandelson, to make amendments to the Copyright Designs and Patents Act without first consulting Parliament.

In December, top level executives from Google, Yahoo!, eBay and Facebook expressed strong concerns about this in an open letter to Lord Mandelson, the closing line of which reads “we urge you to remove Clause 17 from the bill.” The crux of their complaint is that the controversial provision could pave the way for arbitrary measures and a high degree of uncertainty if new laws can be fast-tracked through the system on a whim.

The government has made a number of concessions in order to allay some of these fears including proposals to water down the powers conferred upon the Secretary of State. In particular, a 60 day consultation period has been proposed, as has an evidential test whereby it must be shown that harm would result if the amendments were not made. In addition, the power cannot be used to create or modify a criminal offence. In spite of mounting opposition to the clause, the government remains in support ofit, stressing that the new powers are required in order to “future-proof” copyright law as new technologies develop.

Whilst most will appreciate that the law must evolve in line with technology, Clause 17 allows the Secretary of State effectively to rewrite primary legislation with a minimum level of Parliamentary scrutiny making this clause, perhaps, a step too far.

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com