Louboutin-Amazon decision does not apply to ordinary market places

Fruugo is an ordinary online marketplace: retailers upload and sell their own products on Fruugo, while Fruugo does not sell goods itself. Audi and Volkswagen found non-authorised products on Fruugo’s website and initiated infringement proceedings. They claim that not only the retailers on the Fruugo platform, but also Fruugo itself infringes their trademarks.

The District Court of The Hague (in Dutch) applies the standard rule from L’Oréal/eBay to Fruugo, being an ordinary marketplace: an online marketplace does not use trademarks in sales advertisements in its own commercial communication. Hence the platform does not infringe on the mark. The court follows Fruugo’s position that the Louboutin/Amazon judgment applies only to hybrid marketplaces, i.e. platforms (like Amazon) that also sell on the platform for their own account. Further, the court finds that it is sufficiently clear to consumers visiting the Fruugo marketplace that they buy from a specific retailer, not from Fruugo itself.

The court also holds that Fruugo does not have any active knowledge in relation to the products uploaded on its platform, while its notice and takedown system functions properly. In that regard, the court emphasises that Fruugo took down the non-authorised Audi and Volkswagen products within one day of receiving a cease and  desist letter from the companies. Fruugo is therefore also eligible for the exception to liability under the e-Commerce Directive, and, looking ahead to the Digital Services Act, under Article 6 of that future act.

Moïra Truijens and Mathijs Peijnenburg represent Fruugo in this case.