No invocation of platform exception, but liable

Light in the Box (LITB) is, despite its pleaded platform role, still liable for the infringing sale of Hikvision products on its platform. On 17 May 2022, the Court of Appeal of The Hague confirmed the earlier judgment of the District Court.

LITB argued that it could not be blamed because it would only have a "neutral platform role." It was not responsible itself for supplyng the products to the consumer, but a Chinese distributor. However, correspondence about prices of the products showed that LITB in fact did have a role in this itself. The user conditions also confirmed a purchase agreement between the consumer and LITB UK, not with another supplier. Its role therefore went beyond strictly providing platform services.

Thus, LITB does not meet the strict conditions under which a neutral platform avoids liability for trading in infringing products through the platform. In the appeal the infringement injunction against LITB is upheld.

The Court of Justice EU will soon shed more light on platform liability: in the case between Amazon and Louboutin the Advocate General recently advised that Amazon is not liable for counterfeit Louboutin shoes with the famous red sole offered by third parties on its platform. The reason: Amazon, as an intermediary, does not itself make use of Louboutin's trademark. It remains to be seen whether the Court of Justice will follow this line. You will certainly hear more about this soon!

Moïra Truijens