IP case law Court of Justice

Referral C-148/21 (Louboutin, 8 Mar 2021)



1. Must Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark be interpreted as meaning that the use of a sign identical with a trade mark in an advertisement displayed on a website is, in principle, attributable to its operator if, in the perception of a reasonably well informed and reasonably observant internet user, that operator has played an active part in the preparation of that advertisement or if that advertisement may be perceived by such an internet user as forming part of that operator’s own commercial communication?

Will such perception be influenced:

by the fact that that operator is a well-known distributor of a wide range of goods, including goods in the category of those featured in the advertisement; or
by the fact that the advertisement thus displayed presents a heading in which the service mark of that operator is reproduced, that mark being well known as a distributor’s trade mark; or
furthermore, by the fact that, as well as displaying that advertisement, that operator offers services traditionally offered by distributors of goods in the same category as that to which the goods featured in the advertisement belong?

2. Must Article 9(2) of Regulation 2017/1001 on the European Union trade mark be interpreted as meaning that the shipment, in the course of trade and without the consent of the proprietor of a trade mark, to the final consumer of goods bearing a sign identical with the mark constitutes a use attributable to the shipper only if the shipper has actual knowledge that that sign has been affixed to those goods?

Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has informed the final consumer that it will undertake that shipment after it or an economically linked entity has stocked the goods for that purpose? Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has previously made an active contribution to the display, in the course of trade, of an advertisement for the goods bearing that sign or has taken the final consumer’s order on the basis of that advertisement?


Case details on the CJEU website (external link)


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