03/02/2020 CURIA - Documents ‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade ...’. Section 5 of Chapter II of Directive 2004/48 is entitled ‘Measures resulting from a decision on the merits of the case’. It is formed of Articles 10, 11 and 12, entitled, ‘Corrective measures’, ‘Injunctions’ and ‘Alternative measures’, respectively. Under Article 11 of Directive 2004/48: ‘Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.’ Article 8(3) of Directive 2001/29, provides: ‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.’ D – Directive 76/768 (‘Directive on cosmetic products’) Article 6(1) of Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (OJ 1976 L 262, p. 169), as amended by Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003 (OJ 2003 L 66, p. 26), provides: ‘1. Member States shall take all measures necessary to ensure that cosmetic products may be marketed only if the container and packaging bear the following information in indelible, easily legible and visible lettering; the information mentioned in point (g) may, however, be indicated on the packaging alone: the name or style and the address or registered office of the manufacturer or the person responsible for marketing the cosmetic product who is established within the Community …; the nominal content at the time of packaging …; the date of minimum durability …; particular precautions to be observed in use …; the batch number of manufacture or the reference for identifying the goods. …; the function of the product, unless it is clear from the presentation of the product; a list of ingredients … . …’. E – National legislation Directive 89/104 was incorporated into national law by the Trade Marks Act 1994. Section 10 of that Act implements Article 5(1) to (3) of Directive 89/104. Directive 2000/31 was incorporated into national law by the Electronic Commerce (EC Directive) Regulations. Regulation 19 thereof implements Article 14 of Directive 2000/31. As regards the third sentence of Article 11 of Directive 2004/48, the United Kingdom of Great Britain and Northern Ireland has not adopted specific rules to implement that provision. The power to grant injunctions is, however, governed by Section 37 of the Supreme Court Act 1981, by virtue of which the High Court may grant an injunction ‘in all cases in which it appears to be just and convenient to do so’. Directive 76/768 is incorporated into national law by the Cosmetic Products (Safety) Regulations. Regulation 12 thereof corresponds to Article 6(1) of Directive 76/768 and contravention of that regulation can constitute a criminal offence. II – The dispute in the main proceedings and the questions referred for a preliminary ruling L’Oréal is a manufacturer and supplier of perfumes, cosmetics and hair-care products. In the United Kingdom it is the proprietor of a number of national trade marks. It is also the proprietor of Community trade marks. L’Oréal operates a closed selective distribution network, in which authorised distributors are restrained from supplying products to other distributors. eBay operates an electronic marketplace on which are displayed listings of goods offered for sale by persons who have registered for that purpose with eBay and have created a seller’s account with it. eBay charges a percentage fee on completed transactions. eBay enables prospective buyers to bid for items offered by sellers. It also allows items to be sold without an auction, and thus for a fixed price, by means of a system known as ‘Buy It Now’. Sellers can also set up online shops on eBay sites. An online shop lists all the items offered for sale by one seller at a given time. Sellers and buyers must accept eBay’s online-market user agreement. One of the terms of that agreement is a prohibition on selling counterfeit items and on infringing trade marks. In some cases eBay assists sellers in order to enhance their offers for sale, to set up online shops, to promote and increase their sales. It also advertises some of the products sold on its marketplace using search engine operators such as Google to trigger the display of advertisements. On 22 May 2007, L’Oréal sent eBay a letter expressing its concerns about the widespread incidence of transactions infringing its intellectual property rights on eBay’s European websites. L’Oréal was not satisfied with the response it received and brought actions against eBay in various Member States, including an action before the High Court of Justice (England & Wales), Chancery Division. curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 4/15