Luxury goods companies, like many other trademark owners, have been continuously vexed by the large numbers of counterfeits and other infringements offered by ecommerce platforms without much recourse.
In 2020, the C.J.E.U. considered a similar trademark infringement question in the case ofGermany’s highest court, the Federal Court of Justice, certified a legal question to the C.J.E.U.: whether the storage of infringing goods by an Amazon company, without knowledge of their infringing nature, rendered Amazon liable.
As this question was presented to the C.J.E.U., Amazon did nothing more than allow its warehouse to be used to stock goods sold by third parties. That, the C.J.E.U. ruled, is not considered “using” the trademarks which are on the goods. So, Amazon escaped liability.The European Union’s advocate-general, Campos Sánchez-Bordona, advised the C.J.E.U. to rule that Amazon should be liable for trademark infringement because of the “Fulfillment by Amazon” service.
Like E.U. law, U.S. law recognizes what is termed here “contributory liability,” where a company supplies goods or services used to aid in the primary infringement by the seller. As noted above, Amazon is actively involved in nearly every stage of the sale process, controlling aspects of everything from the listing and pricing to warehousing and shipping to payment processing and customer service.
Vicarious liability does not require any specific, or even general, knowledge of infringement – it basically requires two parties that are working closely together to be responsible for one another, even if technically only one of them is the direct infringer. Finally, one possible, albeit controversial theory of liability is that shipping goods bearing an infringing trademark constitutes “use” of the trademark, making the shipper directly liable.
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