03/02/2020 CURIA - Documents trade marks in offers for sale displayed on an online marketplace is made by the sellers who are customers of the operator of that marketplace and not by that operator itself. Inasmuch as it enables that use to be made by its customers, the role of the online marketplace operator cannot be assessed under Directive 89/104 or Regulation No 40/94, but must be examined from the point of view of other rules of law, such as those set out in Directive 2000/31, in particular in Section 4 of Chapter II, which concerns the ‘liability of intermediary service providers’ in electronic commerce and comprises Articles 12 to 15 of that directive (see, by analogy, Google France and Google, paragraph 57). In view of the foregoing, the answer to the eighth question is that the operator of an online marketplace does not ‘use’ – for the purposes of Article 5 of Directive 89/104 or Article 9 of Regulation No 40/94 – signs identical with or similar to trade marks which appear in offers for sale displayed on its site. D – The ninth question concerning the liability of the operator of an online marketplace By its ninth question, the referring court asks, in essence, whether the service provided by the operator of an online marketplace is covered by Article 14(1) of Directive 2000/31 (hosting), and, if so, in what circumstances it may be concluded that the operator of an online marketplace has ‘awareness’ within the meaning of Article 14(1) of Directive 2000/31. 1. Hosting, by the operator of an online marketplace, of information provided by the sellers that are its customers As the Court has already held, Articles 12 to 15 of Directive 2000/31 seek to restrict the situations in which intermediary providers of information society services may be held liable pursuant to the applicable national law. It is therefore in the context of national law that the conditions under which such liability arises must be sought, it being understood, however, that, by virtue of Articles 12 to 15 of Directive 2000/31, certain situations cannot give rise to liability on the part of intermediary service providers (Google France and Google, paragraph 107). Although it is thus for the referring court to determine the conditions under which liability such as that raised by L’Oréal against eBay arises, it is for the Court to consider whether the operator of an online marketplace may rely on the exemption from liability provided for by Directive 2000/31. As has been pointed out by, inter alia, the United Kingdom Government, the Polish Government and the Commission, as well as by the Advocate General at paragraph 134 of his Opinion, an internet service consisting in facilitating relations between sellers and buyers of goods is, in principle, a service for the purposes of Directive 2000/31. That directive concerns, as its title suggests, ‘information society services, in particular electronic commerce’. It is apparent from the definition of ‘information society service’, cited at paragraphs 8 and 9 of this judgment, that that concept encompasses services provided at a distance by means of electronic equipment for the processing and storage of data, at the individual request of a recipient of services and, normally, for remuneration. It is clear that the operation of an online marketplace can bring all those elements into play. With regard to the online marketplace at issue in the main proceedings, it is not disputed that eBay stores, that is to say, holds in its server’s memory, data supplied by its customers. That storage operation is carried out by eBay each time that a customer opens a selling account with it and provides it with data concerning its offers for sale. Furthermore, eBay normally receives remuneration inasmuch as it charges a percentage on transactions completed on the basis of those offers for sale. However, the fact that the service provided by the operator of an online marketplace includes the storage of information transmitted to it by its customer-sellers is not in itself a sufficient ground for concluding that that service falls, in all situations, within the scope of Article 14(1) of Directive 2000/31. That provision must, in fact, be interpreted in the light not only of its wording but also of the context in which it occurs and the objectives pursued by the rules of which it is part (see, by analogy, Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-7841, paragraph 15 and the case-law cited). In that regard, the Court has already stated that, in order for an internet service provider to fall within the scope of Article 14 of Directive 2000/31, it is essential that the provider be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive (see Google France and Google, paragraph 112). That is not the case where the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data (Google France and Google, paragraphs 114 and 120). It is clear from the documents before the Court and from the description at paragraphs 28 to 31 of this judgment that eBay processes the data entered by its customer-sellers. The sales in which the offers may result take place in accordance with terms set by eBay. In some cases, eBay also provides assistance intended to optimise or promote certain offers for sale. As the United Kingdom Government has rightly observed, the mere fact that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France and Google, paragraph 116). Where, by contrast, the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data, on the exemption from liability referred to in Article 14(1) of Directive 2000/31. It is for the referring court to examine whether eBay played a role such as that described in the preceding paragraph in relation to the offers for sale at issue in the case before it. 2. The possession, by the operator of the online marketplace, of ‘awareness’ Should the referring court conclude that eBay has not acted in the way described in paragraph 116 of this judgment, it will be for it to ascertain whether, in the circumstances of the case before it, eBay has met the curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 11/15