Coty/Amazon: is the warehousekeeper not an "intermediary whose services are used by a third party to infringe an intellectual property right"?
In the frame of a preliminary ruling on the interpretation of Article 9 of Regulation No 207/2009 on the European trade mark, the Court of Justice, in its Coty/Amazon decision of 2 April 2009, held that a warehousekeeper who holds goods infringing an intellectual property right cannot be considered as holding such goods "for the purpose of offering or putting them on the market" if (i) the goods are held on behalf of a third party, (ii) the warehousekeeper has no knowledge of the infringement, and (iii) the warehousekeeper does not itself pursue the purpose of offering or putting them on the market.
The Amazon entity, which merely warehoused goods on behalf of a third-party seller, unaware of the infringement of Coty's IP rights, is therefore not liable for trademark infringement based on Article 9 of Regulation 207/2009.
Since it was not seized of the matter, the Court did not rule on the question of other possible basis to hold Amazon liable in such a situation, like Article 14 (1) of Directive 2000/31 on electronic commerce, which concerns the liability of the host who is made aware of the infringement of an IP right, for instance.
Most importantly, would it not be appropriate, in such a situation, to make use of the concept of 'intermediaries whose services are used to infringe an IP right' mentioned in Article 9 and the last sentence of Article 11 of Directive 2004/48?
The intermediary has been defined by the Court as one who 'provides a service capable of being used by one or more other persons in order to infringe one or more IP rights, but it is not necessary that it maintain a specific relationship with that person or those persons' (CJEU, C-494/15 Delta Center). In this respect, the operator of an online marketplace (CJEU, C-324/09, L'Oréal/eBay), as well as the owner who rents or sublets commercial premises, have been considered as intermediaries liable to receive injunctions, either by the CJEU (CJEU, C-494/15 Delta Center), or more recently by the Judge in summary proceedings of the Paris Court of Justice in several Orders (14. 10.2019, n°19/57383 and 18.11.2019, n°19/57403, 19/57461 and 19/57407).