Policing Trademark Infringement on Online Selling Platforms: An Account of Tensions between ISP Liability, Trademark Protection and Competition Law in the EU

In the past decade, the argument that has shaped the law of online intermediary liability is that intermediaries should not incur liability for IP infringements (including trademark infringements) committed by third parties on their platforms. For economic efficiency reasons, the burden of policing platforms for IP infringements should solely be placed on IP owners. While this contribution generally agrees with this position, it points out that competition law, as applied by several competition authorities in the EU, might place obstacles to trademark owners trying to implement a distribution policy that they believe best to protect them from trade in counterfeit goods on online selling platforms. National competition authorities have targeted brand owners that implement selective distribution systems imposing online selling platform bans on their distributors. They have found these distribution agreements to be a form of restriction of competition contrary to Article 101 TFEU. The Court of Justice of the European Union (CJEU) will soon have the opportunity in pending Case C-230/16 Coty v Akzente to rule indirectly on whether this practice of the national competition authorities is in line with EU competition rules or is overly strict. When deciding this case, the Court should be aware of potential tensions with the regime for online intermediary liability it has established in relation to EU trademark law under the E-Commerce Directive.