On 7 July 2016 the European Court of Justice adopted a significant preliminary ruling. In this ruling the court interpreted the notion of “intermediary whose services are used by a third party in violation of intellectual property rights” enshrined in Article 11 of the directive on the enforcement of intellectual property rights.
The European Court of Justice stated that the above mentioned “intermediary” concept also includes an intermediary who provides services by subleasing tenant of market halls to the traders, some of whom uses the subleased areas for trade of counterfeiting goods indicated by the specific trademark. It is important to note the keynote of the court’s ruling – the conditions of the prohibition of further infringement that applies to such an intermediary, as the offender, identical to those which may be addressed to intermediaries in an online marketplace.
A new opportunity to defend effectively intellectual property rights owned by the trademark owners has been established by the decision of the European Court of Justice. Whereas, to the intermediaries of the trade (virtual or real one) the new duty of care is established – to ensure that its customers (tenants) cease trade actions that violate rights of the trademark owners, also to ensure that the new violations of the same nature would not occur.