Online counterfeiting: Cdiscount cannot be held liable

Jansport Apparel Corp. (JAC), the manufacturer of bags and travel accessories that owns “Eastpak” trademarks, noted that several companies based in China were offering counterfeits of its products on Cdiscount. It appears from the judgment that JAC was “unable to directly contact the sellers,” which led genuine manufacturer, at first, to send to Cdiscount cease and desist letters, secondly, to sue the marketplace before the Paris court of first instance.

The first question concerned the role of Cdiscount. JAC’s main purpose was to convince the court that Cdiscount plays an active role in the sale of the goods in issue, thereby depriving the online marketplace of the French “Safe Harbour” provisions. The court refused to support the claimant for the following reasons:

“More specifically, with regard to the various features of the platform mentioned by the claimant, those of the search engine for the products by means of relevant keywords, the notation of the sellers, the provision of tools to present the products sold as well as management tools and promotion of offers, referral to other ads in case of out of stock, management of the financial transaction or collection of a commission on the selling price of products are based on the application of algorithms that do not involve any active role on the part of Cdiscount and are inherent in the functioning of any marketplace. These features and services, while contributing to the promotion of sales offers by facilitating the visibility of ads by users, are nonetheless automated and independent of their content.

Similarly, additional services that may be offered, such as providing tools to display all products sold or logistics services, do not lead to an active knowledge by Cdiscount of the products sold by third-party sellers.

It follows from the foregoing that the claimant produces no evidence capable of proving the existence of an active role involving editorial choices on the part of Cdiscount and, more generally, the knowledge or control of the disputed contents. On the contrary, the functionalities mentioned above appear to be technical operations that participate in the essence of the hosting provider (…).

Therefore, the contentious services offered by Cdiscount’s “marketplace” can be qualified as hosting services, and the defendant, therefore, rightly intends to benefit from the liability regime relating to the status of technical intermediary within the meaning of of the LCEN.” (LCEN being the French law that governs the liability of intermediaries)

The court logically concludes that Cdiscount must receive the status of host and thus benefit from the exemption regime of civil liability attached to this category of actors. Therefore, the next step was to ascertain whether Cdiscount had complied with its obligation to remove the allegedly infringing goods promptly. For the court, the Cdiscount platform fully complied with this obligation by withdrawing the said products as soon as it became aware of them.

Lastly, concerning the information relating to the identification of merchants, the court states: “Cdiscount’s writings and illustrations show that it provides relatively easy access to the details declared by the sellers by clicking on the page of an advertisement, the name of the seller, and the link” GTC & Return Policy ». The examples produced concerning the “SPORTS DEPOT” or “AA COMMERCE” sellers make it possible to demonstrate that postal addresses were accessible, and that, at least, for other sellers, a corporate name was identifiable.”

The real question remains, that of the opportunity to sue a merchant indicating a postal address in China before the French courts and, as a consequence, the recognition and enforcement of French judgments in China. We will address this issue in a future post.

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