# C_2021189EN.01001202.xml

| 17.5.2021 | EN | Official Journal of the European Union | C 189/12 |
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17.5.2021

EN

Official Journal of the European Union

C 189/12

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Request for a preliminary ruling from the Tribunal d’arrondissement (Luxembourg) lodged on 8 March 2021 — Christian Louboutin v Amazon Europe Core Sàrl, Amazon EU Sàrl, Amazon Services Europe Sàrl

(Case C-148/21)

(2021/C 189/14)

Language of the case: French

Referring court

Tribunal d’arrondissement

Parties to the main proceedings

Applicant: Mr Christian Louboutin

Defendants: Amazon Europe Core Sàrl, Amazon EU Sàrl, Amazon Services Europe Sàrl

Questions referred

| 1. | Is Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (1) to be interpreted as meaning that the use of a sign identical with a trade mark in an advertisement displayed on a website is attributable to the website operator or to entities economically linked with it owing to the combination on that website of the operator’s or its economically linked entities’ own offers and those of third-party sellers, by the incorporation of those advertisements in the operator’s or its economically linked entities own commercial communication?
  Is such incorporation strengthened by the fact that:






  — | the advertisements are presented uniformly on the website? |
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1.

Is Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (1) to be interpreted as meaning that the use of a sign identical with a trade mark in an advertisement displayed on a website is attributable to the website operator or to entities economically linked with it owing to the combination on that website of the operator’s or its economically linked entities’ own offers and those of third-party sellers, by the incorporation of those advertisements in the operator’s or its economically linked entities own commercial communication?

Is such incorporation strengthened by the fact that:

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the advertisements are presented uniformly on the website?

| — | the operator’s own advertisements and those of economically linked entities and the advertisements of third-party sellers are displayed without distinction as to their origin, but clearly display the logo of the operator or of economically linked entities, in the advertising categories of third-party websites in the form of ‘pop-ups’? |
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the operator’s own advertisements and those of economically linked entities and the advertisements of third-party sellers are displayed without distinction as to their origin, but clearly display the logo of the operator or of economically linked entities, in the advertising categories of third-party websites in the form of ‘pop-ups’?

| — | the operator or economically linked entities offer a comprehensive service to third-party sellers, including providing assistance in preparing the advertisements and setting selling prices, stocking the goods and shipping them? |
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the operator or economically linked entities offer a comprehensive service to third-party sellers, including providing assistance in preparing the advertisements and setting selling prices, stocking the goods and shipping them?

| — | the website of the operator and economically linked entities is designed in such a way as to be presented in the form of shops and labels such as ‘best sellers’, ‘most sought after’ or ‘most popular’, without apparent distinction, at first sight, between the operator’s and economically linked entities’ own goods and third-party sellers’ goods? |
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the website of the operator and economically linked entities is designed in such a way as to be presented in the form of shops and labels such as ‘best sellers’, ‘most sought after’ or ‘most popular’, without apparent distinction, at first sight, between the operator’s and economically linked entities’ own goods and third-party sellers’ goods?

| 2. | Is Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark to be interpreted as meaning that the use of a sign identical with a trade mark in an advertisement displayed on an online store is, in principle, attributable to its operator or to economically linked entities if, in the perception of a reasonably well informed and reasonably observant internet user, that operator or an economically linked entity has played an active role in the preparation of that advertisement or if that advertisement is perceived as forming part of that operator’s own commercial communication?
  Is such a perception influenced by:






  — | the fact that that operator and/or economically linked entities is a well-known distributor of a vast range of goods, including goods in the category of those featured in the advertisement; or |
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2.

Is Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark to be interpreted as meaning that the use of a sign identical with a trade mark in an advertisement displayed on an online store is, in principle, attributable to its operator or to economically linked entities if, in the perception of a reasonably well informed and reasonably observant internet user, that operator or an economically linked entity has played an active role in the preparation of that advertisement or if that advertisement is perceived as forming part of that operator’s own commercial communication?

Is such a perception influenced by:

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the fact that that operator and/or economically linked entities is a well-known distributor of a vast range of goods, including goods in the category of those featured in the advertisement; or

| — | the fact that the advertisement thus displayed shows a heading in which the service mark of that operator or economically linked entities is reproduced, that mark being well known as a distributor’s mark; or |
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the fact that the advertisement thus displayed shows a heading in which the service mark of that operator or economically linked entities is reproduced, that mark being well known as a distributor’s mark; or

| — | the fact that that operator or economically linked entities offer, together with that display, services traditionally offered by distributors of goods in the same category as that to which the goods featured in the advertisement belongs? |
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the fact that that operator or economically linked entities offer, together with that display, services traditionally offered by distributors of goods in the same category as that to which the goods featured in the advertisement belongs?

| 3. | Must Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark be interpreted as meaning that the shipment, in the course of trade and without the consent of the proprietor of a trade mark, to the final consumer of goods bearing a sign identical with the mark, constitutes use attributable to the shipper only if the shipper has actual knowledge that the sign has been affixed to the goods?
  Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has informed the final consumer that it will undertake the shipment after it or an economically linked entity has stocked the goods for that purpose?
  Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has previously made an active contribution to the display, in the course of trade, of an advertisement for the goods bearing that sign or has taken the final consumer’s order on the basis of that advertisement? |
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3.

Must Article 9(2) of Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark be interpreted as meaning that the shipment, in the course of trade and without the consent of the proprietor of a trade mark, to the final consumer of goods bearing a sign identical with the mark, constitutes use attributable to the shipper only if the shipper has actual knowledge that the sign has been affixed to the goods?

Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has informed the final consumer that it will undertake the shipment after it or an economically linked entity has stocked the goods for that purpose?

Is such a shipper the user of the sign concerned if the shipper itself or an economically linked entity has previously made an active contribution to the display, in the course of trade, of an advertisement for the goods bearing that sign or has taken the final consumer’s order on the basis of that advertisement?

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(1)  OJ 2017 L 154, p. 1.

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