Coty Germany GmbH v Amazon Services Europe Sàrl and Others.
Date: 2020-04-02
21


In that regard, it should be borne in mind that the Court, when answering questions referred for a preliminary ruling, must take account, under the division of jurisdiction between the Courts of the European Union and the national courts, of the factual and legislative context of the questions as described in the order for reference (judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 24, and of 14 November 2019, Spedidam, C‑484/18, EU:C:2019:970, paragraph 29 and the case-law cited).
22


Since the national court alone has jurisdiction to find and assess the facts in the case before it, the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it and thus proceed on the basis of the situation which that court or tribunal considers to be established, and cannot be bound by suppositions raised by one of the parties to the main proceedings (judgment of 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 36 and the case-law cited).
23


It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 19 December 2019, Dobersberger, C‑16/18, EU:C:2019:1110, paragraph 18 and the case-law cited).
24


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 19 December 2019, Dobersberger, C‑16/18, EU:C:2019:1110, paragraph 19 and the case-law cited).
32


Article 9(2) of Regulation No 207/2009, the substance of which is reproduced in Article 9(3) of Regulation 2017/1001, sets out a non-exhaustive list of the types of use which may be prohibited by a trade mark proprietor under Article 9(1) of Regulation No 207/2009 and Article 9(1) of Regulation 2017/1001 (see, to that effect, judgment of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 65).
37


The Court has, however, already had occasion to point out that, according to its ordinary meaning, the expression ‘using’ involves active behaviour and direct or indirect control of the act constituting the use. In that regard, it has noted that Article 9(2) of Regulation No 207/2009, the substance of which is reproduced in Article 9(3) of Regulation 2017/1001, which lists in a non-exhaustive manner the types of use which the trade mark proprietor may prohibit, refers exclusively to active behaviour on the part of the third party (see, to that effect, judgments of 3 March 2016, Daimler, C‑179/15, EU:C:2016:134, paragraphs 39 and 40, and of 25 July 2018, Mitsubishi Shoji Kaisha and Mitsubishi Caterpillar Forklift Europe, C‑129/17, EU:C:2018:594, paragraph 38).
38


The Court has also noted that those provisions are intended to provide a trade mark proprietor with a legal instrument allowing him to prohibit, and thus to prevent, any use of his trade mark by a third party without his consent. However, only a third party who has direct or indirect control of the act constituting the use is effectively able to stop that use and therefore comply with that prohibition (see, to that effect, judgment of 3 March 2016, Daimler, C‑179/15, EU:C:2016:134, paragraph 41).
39


The Court has also repeatedly held that the use, by a third party, of a sign identical or similar to the proprietor’s trade mark implies, at the very least, that that third party uses the sign in its own commercial communication. A person may thus allow its clients to use signs which are identical or similar to trade marks without itself using those signs (see, to that effect, judgment of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 56).
40


Thus, the Court has held, as regards the operation of an e-commerce platform, that the use of signs identical or similar to trade marks in offers for sale displayed in an online marketplace is made by the sellers who are customers of the operator of that marketplace and not by that operator itself (see, to that effect, judgment of 12 July 2011, L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraph 103).
41


It has also noted, as regards an undertaking whose main activity is filling cans with drinks produced by it or by third parties, that a service provider who merely fills, under an order from and on the instructions of a third party, cans already bearing signs similar to trade marks and therefore merely executes a technical part of the production process of the final product without having any interest in the external presentation of those cans and in particular in the signs thereon, is not itself ‘using’ those signs, but is only creating the technical conditions necessary for the third party to use them (see, to that effect, judgment of 15 December 2011, Frisdranken Industrie Winters, C‑119/10, EU:C:2011:837, paragraph 30).
42


Similarly, the Court has held that, although an economic operator who imports or sends to a warehouse-keeper, for the purposes of their being put on the market, goods bearing a trade mark of which it is not the proprietor may be regarded as ‘using’ a sign identical to that trade mark, that is not necessarily true of the warehouse-keeper who provides a storage service in relation to goods bearing another person’s trade mark (see, to that effect, judgment of 16 July 2015, TOP Logistics and Others, C‑379/14, EU:C:2015:497, paragraphs 42 and 45).
43


The fact of creating the technical conditions necessary for the use of a sign and being paid for that service does not mean that the party offering the service itself uses the sign (see, to that effect, judgments of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 57, and of 15 December 2011, Frisdranken Industrie Winters, C‑119/10, EU:C:2011:837, paragraph 29).
49


Lastly, notwithstanding the considerations referred to in paragraph 47 above, it should be borne in mind that it is apparent from settled case-law that, where an economic operator has enabled another operator to make use of the trade mark, its role must, as necessary, be examined from the point of view of rules of law other than Article 9 of Regulation No 207/2009 or Article 9 of Regulation 2017/1001 (see, to that effect, judgments of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 57, and of 15 December 2011, Frisdranken Industrie Winters, C‑119/10, EU:C:2011:837, paragraph 35), such as Article 14(1) of Directive 2000/31 or the first sentence of Article 11 of Directive 2004/48.
51


It should, however, be borne in mind that, according to settled case-law, it is not necessary to examine questions submitted to the Court by the parties to the main proceedings other than those that were the subject of the national court’s order for reference (judgment of 3 September 2015, A2A, C‑89/14, EU:C:2015:537, paragraph 44 and the case-law cited).