On July 20, 2010, the Court of Appeal of Reims confirmed the findings of the First Instance Court which ruled that eBay companies and a seller of fake Hermès bags on www.ebay.fr had infringed the marks of Hermès International.
The Court said that, when the fake Hermès bags sold in 2006 on the auction site, eBay had not set up full and complete information tools enabling eBay users to properly identity items offered for sale and differentiating them from counterfeiting products.
The Court pointed out that a hosting company such as eBay, offering services which aim at taking advantage of the attractive value of stored datas, goes beyond simply hosting, cannot be regarded as neutral and is consequently fully responsible as to the website content.
This very first decision of a French Court of Appeal on eBay’s liability was indeed quite awaited. We now need to know whether this first direction eluding eBay from the limited responsibility of a hosting company will be further adopted by the whole French case law.
Indeed, on May 13, 2009, the Court of First Instance of Paris ruled that trademark infringement against eBay could only sought in case of evidenced knowledge of the infringing content and failure by eBay to remedy thereto.