Case C‑494/15

Tommy Hilfiger Licensing LLC and Others

v

Delta Center a.s.

(Request for a preliminary ruling from
the Nejvyšší soud)

(Reference for a preliminary ruling — Approximation of laws — Directive 2004/48/EC — Enforcement of intellectual property rights — Notion of ‘intermediary whose services are being used by a third party to infringe an intellectual property right’ — Tenant of market halls subletting sales points — Possibility of an injunction against that tenant — Article 11)

Summary — Judgment of the Court (Second Chamber), 7 July 2016

1.        Approximation of laws — Enforcement of intellectual property rights — Directive 2004/48 — Measures, procedures and remedies — Intermediary within the meaning of Article 11 of Directive 2004/48 — Meaning — Tenant of market halls subletting sales points situated in those halls to market-traders — Included

(European Parliament and Council Directives 2001/29, Art. 8(3) and 2004/48, Art. 11)

2.        Approximation of laws — Enforcement of intellectual property rights — Directive 2004/48 — Measures, procedures and remedies — Tenant of market halls subletting sales points — Possibility of an injunction against that tenant — Conditions identical to those regarding intermediaries in an online marketplace

(European Parliament and Council Directive 2004/48, Arts 3 and 11)

1.        The third sentence of Article 11 of Directive 2004/48 on the enforcement of intellectual property rights must be interpreted as meaning that the tenant of market halls who sublets the various sales points situated in those halls to market-traders, some of whom use their pitches in order to sell counterfeit branded products, falls within the concept of ‘an intermediary whose services are being used by a third party to infringe an intellectual property right’ within the meaning of that provision.

That article, like Article 8(3) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society to which it refers obliges Member States to ensure that an intermediary whose services are used by a third party in order to infringe an intellectual property right may, regardless of any liability of its own in relation to the facts at issue, be ordered to take measures aimed at bringing those infringements to an end and measures seeking to prevent further infringements.

The fact that the provision of sales points concerns an online marketplace or a physical marketplace such as market halls is irrelevant in that connection. It is not apparent from Directive 2004/48 that the scope of the directive is limited to electronic commerce. Moreover, the objective stated in recital 10 of that directive of ensuring a high, equivalent and homogeneous level of protection of intellectual property in the internal market would be substantially weakened if an operator which provides third parties with access to a physical marketplace could not be the subject of the injunctions referred to in the third sentence of Article 11 of that directive.

(see paras 22, 29, 30, operative part 1)

2.        The third sentence of Article 11 of Directive 2004/48 on the enforcement of intellectual property rights must be interpreted as meaning that the conditions for an injunction within the meaning of that provision against an intermediary who provides a service relating to the letting of sales points in market halls are identical to those for injunctions which may be addressed to intermediaries in an online marketplace, set out by the Court in the judgment of 12 July 2011 in L’Oréal and Others, C‑324/09.

That interpretation was adopted in the light of the general provisions formulated in Article 3 of that directive, without specific considerations relating to the nature of the marketplace at issue. Nor is it apparent from Article 3 of the directive that its scope is limited to situations which occur in online marketplaces. Moreover, it follows from the wording of Article 3 of the directive that it applies to any measure referred to by that directive, including those provided for in the third sentence of Article 11 of the directive.

(see paras 36, 37, operative part 2)