The Advocate General of the ECJ on the use of trademarks and the liability of Internet service providers

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On June 2, 2022, the Advocate General of the Court of Justice of the European Union (the “Advocate General”) delivered his conclusions (the “AG Conclusions”) in Joined Cases C-148/21 and C-184/21, arising from the preliminary examination of requests for a ruling concerning the liability of Internet Service Providers (“ISPs”) in matters of trademark law. The Conclusions of the GA aimed at determining the conditions under which the commercial communications of an ISP displaying both its offers to sell and offers to sell from third parties and using a third-party mark consist of use of this mark which is relevant for the purpose of determining potential trademark infringements. The findings of the AG concluded that there have been instances of use of a mark by an ISP similar to the case under consideration where the relevant public has perceived this sign as an integral part of commercial communications from the ISP. The use by an ISP of a third-party brand will be assessed using the average Internet user (as the relevant public) as a reference and taking into account the concrete methods used by the ISP in its commercial communication. The Advocate General considered that there had been no use of a third-party trademark by the ISP in question, since the ISP’s commercial communication specified that the trademark in question was not part of such commercial communication. In reaching this decision, the Advocate General also took into account the fact that the retailer’s advertisement was clearly indicated as such, thus avoiding confusion for the average Internet user.

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