The Court of cassation puts an end to the French case law hesitations by stating, in 3 decisions, that eBay is an editor.
Web host or editor? Indeed, two qualifications are possible regarding the eBay kind of commercial websites. This duality comes from the law on confidence in the digital economy (known as the French acronym LCEN), June 24th 2004, which establishes a liability exemption regime for web hosts. Thus, the commercial website which is not aware of the illegal nature of the products which are bought and sold on its platform can’t be held liable: it is deemed as being a web host. On the contrary, the editor, which is totally aware that the traded goods are counterfeits, is considered as being fully accountable.
If the Court of Justice of the European Union recognized that eBay is a web host on the 2nd of July 2011, the French case law was for its part more hesitant. For instance, the Paris Tribunal de Grande Instance held that eBay could benefit from the web host status on the 13rd of March 2012, while the Reims Court of appeal stated that the website was liable in a 20th July 2010 case.
Those three decisions clarify that context by asserting that “the eBay companies did not only operate a simple web host activity but they, irrespective of any option chosen by the clients, took an active role likely to confer them the knowledge or the supervision of the data they stocked and to deprive them from the liability exemption regime”. As eBay cannot hide behind that editor favorable status anymore, it will now be totally liable for trademark infringements perpetrated with its editor support.