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Can Amazon be considered to be using the trademarks reproduced in the ads of third-party sellers?

Having noticed that third party advertisements for red-soled shoes were regularly appearing on Amazon and that these advertisements related to products that Louboutin had not consented to being put on the market, #Louboutin brought a trademark infringement action against Amazon in Belgium and Luxembourg.
As a reminder, Louboutin owns a Benelux trademark and a European Union trademark consisting of the famous red colour on the outsole. 
According to Louboutin, Amazon has made unlawful use of its trade mark due to
  • posting advertisements on its online marketplace for red soled shoes without its consent,
  • the possession, shipment and delivery of these goods.
The Belgian and Luxembourg courts decided to refer the matter to the Court of Justice of the European Union (CJEU) in order to find out whether the operator of an online marketplace can be considered to be using another person's trade mark resulting from an advertisement by a third-party seller. 
Response of the CJEU:
The operator of an online marketplace is liable if a reasonably well-informed and reasonably observant user considers the disputed advertisement to be an integral part of the operator's commercial communication.
The CJEU held that if the operator:
  • uses a uniform presentation of offers for sale published on its website, displaying both its own advertisements and those of third-party sellers
  • displays its own logo as a reputable retailer both on its website and on all those advertisements
  • offers additional services to these third-party sellers in connection with the marketing of their products, including the handling of user queries relating to these products and the storage and shipment of these products,
this may give the user the impression that the operator is marketing, in its own name and on its own account, the products offered for sale by third-party sellers.
It is now up to the referring courts to assess whether this is the case.
This is a case to follow...
Important points to remember:
An operator can be considered to be using the sign in the advertisement of a third-party seller if the normally informed and reasonably attentive user of its site has the impression that the operator is using the sign.

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