03/02/2020 CURIA - Documents Before considering those questions, it is important to recall, following the Advocate General at point 79 of his Opinion, that the exclusive rights conferred by trade marks may, as a rule, be relied on only as against economic operators. Indeed, for the proprietor of a trade mark to be entitled to prevent a third party from using a sign identical with or similar to his trade mark, the use must take place in the course of trade (see, inter alia, Case C‑245/02 Anheuser-Busch [2004] ECR I‑10989, paragraph 62, and Case C‑487/07 L’Oréal and Others [2009] ECR I‑5185, paragraph 57). Accordingly, when an individual sells a product bearing a trade mark through an online marketplace and the transaction does not take place in the context of a commercial activity, the proprietor of the trade mark cannot rely on his exclusive right as expressed in Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94. If, however, owing to their volume, their frequency or other characteristics, the sales made on such a marketplace go beyond the realms of a private activity, the seller will be acting ‘in the course of trade’ within the meaning of those provisions. In its judgment of 22 May 2009, the referring court found that Mr Potts, one of the individual defendants, had sold, through the www.ebay.co.uk site, a large number of items bearing L’Oréal trade marks. In view of that fact, the referring court concluded that Mr Potts had acted as a business seller. Similar findings were made in relation to Ms Ratchford, Ms Ormsby, Ms Clarke, Ms Bi, Mr Clarke and Mr Fox. Thus, given that the offers for sale and the sales mentioned in paragraph 51 of this judgment, which entailed the use of signs identical or similar to trade marks owned by L’Oréal, took place ‘in the course of trade’ and since moreover it is not disputed that L’Oréal did not consent thereto, consideration should be given to whether L’Oréal was entitled, in view of all the rules set out in Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 and to the case-law relating to those provisions, to prevent those offers for sale and sales. 2. The offer for sale, by means of an online marketplace targeted at consumers in the EU, of trade-marked goods intended, by the proprietor of the mark, for sale in third States By its seventh question, which it is appropriate to examine first, the referring court asks, in essence, whether, for the proprietor of a trade mark registered in a Member State of the EU or of a Community trade mark to be able to prevent, under the rules set out in Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, the offer for sale, on an online marketplace, of goods bearing that trade mark which have not previously been put on the market in the EEA or, in the case of a Community trade mark, in the EU, it is sufficient that the offer for sale is targeted at consumers located in the territory covered by the trade mark. The rule set out in Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 confers on the proprietor of a trade mark exclusive rights entitling him to prevent any third party from importing goods bearing that mark, offering the goods, or putting them on the market or stocking them for those purposes, whilst Article 7 of the directive and Article 13 of the regulation have laid down an exception to that rule, providing that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA – or, in the case of a Community trade mark, in the EU – by the proprietor himself or with his consent (see, inter alia, Case C‑16/03 Peak Holding [2004] ECR I‑11313, paragraph 34; Case C‑324/08 Makro Zelfbedieningsgroothandel and Others [2009] ECR I-10019, paragraph 21, and Case C‑127/09 Coty Prestige Lancaster Group [2010] ECR I‑0000, paragraphs 28 and 46). In the situation under consideration in the context of this question, in which the goods have at no time been put on the market within the EEA by the trade mark proprietor or with his consent, the exception set out in Article 7 of Directive 89/104 and Article 13 of Regulation No 40/94 cannot apply. In that regard, the Court has repeatedly held that it is essential that the proprietor of a trade mark registered in a Member State can control the first placing of goods bearing that trade mark on the market in the EEA (see, inter alia, Joined Cases C-414/99 to C‑416/99 Zino Davidoff and Levi Strauss [2001] ECR I-8691, paragraph 33; Peak Holding, paragraphs 36 and 37, and Makro Zelfbedieningsgroothandel and Others, paragraph 32). Whilst recognising those principles, eBay submits that the proprietor of a trade mark registered in a Member State or of a Community trade mark cannot properly rely on the exclusive right conferred by that trade mark as long as the goods bearing it and offered for sale on an online marketplace are located in a third State and will not necessarily be forwarded to the territory covered by the trade mark in question. L’Oréal, the United Kingdom Government, the Italian, Polish and Portuguese Governments, and the European Commission contend, however, that the rules of Directive 89/104 and Regulation No 40/94 apply as soon as it is clear that the offer for sale of a trade-marked product located in a third State is targeted at consumers in the territory covered by the trade mark. The latter contention must be accepted. If it were otherwise, operators which use electronic commerce by offering for sale, on an online market place targeted at consumers within the EU, trade-marked goods located in a third State, which it is possible to view on the screen and to order via that marketplace, would, so far as offers for sale of that type are concerned, have no obligation to comply with the EU intellectual property rules. Such a situation would have an impact on the effectiveness (effet utile) of those rules. It is sufficient to state in that regard that, under Article 5(3)(b) and (d) of Directive 89/104 and Article 9(2)(b) and (d) of Regulation No 40/94, the use by third parties of signs identical with or similar to trade marks which proprietors of those marks may prevent includes the use of such signs in offers for sale and advertising. As the Advocate General observed at point 127 of his Opinion and as the Commission pointed out in its written observations, the effectiveness of those rules would be undermined if they were not to apply to the use, in an internet offer for sale or advertisement targeted at consumers within the EU, of a sign identical with or similar to a trade mark registered in the EU merely because the third party behind that offer or advertisement is established in a third State, because the server of the internet site used by the third party is located in such a State or because the product that is the subject of the offer or the advertisement is located in a third State. It must, however, be made clear that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in that territory (see, by analogy, Joined Cases C‑585/08 and C‑144/09 Pammer and Hotel Alpenhof [2010] ECR curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 7/15