EN
ReportsofCases
ECLI:EU:C:2016 :528 1Case C-4 9 4 / 1 5
Tomm y Hilfiger Licensing LL C and Others
v
Delta Center a.s.
(Request for a p reliminary ruling from
the Nejvyšší soud)
(Reference for a p reliminary ruling — Approximation o f laws — Directive 2004 /48/EC — 
Enforcement of intellectual property rights — Notion o f ‘intermediary whose services are being used by 
a third p arty to infringe an intellectual property right’ — Tenant of market halls subletting sales 
points — Possibility of an injunction a gainst that tenant — Article 11)
Summary — Judgment of the Court (Second Ch amber), 7 July 2016
1. Approximation of laws — Enforcement of intellectual property rights — Directive 2004 /48 — 
Measures, procedures a nd remedies — Intermediary w ithin the m eaning of Article 11 o f 
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 a nd remedies — Tenant of m arket halls subletting sales p oints — 
Possibility of an injunction against that tenant — Conditions identical to those r egarding 
intermediaries in an online marketplace
(European Parliament and Council Directive 2004 /48, Arts 3 and 11)
1. The third s entence of Article 11 o f Directive 2004 /48 on th e enforcement of intellectual property 
rights must be interpreted as me aning th at the tenant of market halls who sublets the various sales 
points situated in th ose halls to m arket-traders, some o f whom u se th eir pitches in order to sell 
counterfeit branded products, falls within th e concept of ‘an intermediary whose services are being 
used by a th ird p arty to infringe an intellectual property right’ within the me aning of that provision.
That article, like A rticle 8(3) of Directive 2001 /29 on th e harmonisation o f certain aspects of copyright 
and related rights in the information s ociety to which it refers obliges Member States to ensure that an 
intermediary whose services are used by a th ird p arty 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 me asures 
aimed at bringing th ose infringements to an end and me asures seeking to p revent further 
infringements.
2 ECLI:EU:C:2016 :528SUMM ARY—CASEC-494/15
TOMMY HILFIGERLICENSINGAND OTHERS
The fact that the provision o f sales points concerns an on line marketplace or a p hysical marketplace 
such as market halls is irr elevant in th at connection. It is no t apparent from D irective 2004 /48 th at 
the scope o f the dir ective i s limited to electronic comme rce. Moreover, the objective s tated in 
recital 10 o f that dir ective o f ensuring a h igh, equivalent and homogeneous level of protection o f 
intellectual property in th e internal market would be substantially weakened if an operator which 
provides th ird p arties with a ccess to a p hysical marketplace could no t be th e subject of th e 
injunctions referred to in the third s entence of Article 11 o f that dir ective.
(see paras 22, 29, 30, operative p art 1)
2. The third s entence of Article 11 o f Directive 2004 /48 on th e enforcement of intellectual property 
rights must be interpreted as me aning th at the conditions for an injunction w ithin th e me aning of 
that provision a gainst an intermediary who provides a s ervice relating to the letting of sales points in 
market halls are identical to th ose for injunctions which m ay be addr essed to intermediari es in an 
online m arketplace, set out by th e Court in th e judgment of 12 July 2011 i n L’Oréal and Others, 
C-324/09.
That interpretation w as adopted in th e light o f the general provisions formulated in Article 3 of that 
directive, without specific considerations relating to th e nature of the marketplace at issue. Nor is it 
apparent from A rticle 3 of the dir ective th at its scope is limited to situations which occur in on line 
marketplaces. Moreover, it follows from th e wording of Article 3 of the dir ective th at it applies to any 
measure referred to by that dir ective, including those provided for in the third s entence of Article 11 o f 
the dir ective.
(see paras 36, 37, operative p art 2)