03/02/2020 CURIA - Documents That use, by eBay, of signs corresponding to L’Oréal trade marks for the purpose of promoting its online marketplace will thus, at the very most, be open to examination on the basis of Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94, as those provisions establish, for trade marks with a reputation, more extensive protection than that provided for in Article 5(1)(a) or Article 9(1)(b) and cover, inter alia, the situation in which a third party uses signs corresponding to such trade marks in relation to goods or services which are not similar to the goods or services for which those marks are registered. Next, in so far as eBay used keywords corresponding to L’Oréal trade marks to promote its customer-sellers’ offers for sale of goods bearing those marks, that use related to goods or services identical with those for which those trade marks are registered. In that regard, the words ‘in relation to goods or services’ do not relate solely to the goods or services of a third party which is using signs corresponding to the trade marks but may also refer to the goods or services of other persons. The fact that an economic operator uses a sign corresponding to a trade mark in relation to goods which are not his own goods – in the sense that he does not have title to them – does not in itself prevent that use from falling within Article 5 of Directive 89/104 and Article 9 of Regulation 40/94 (see Google France and Google, paragraph 60, and the order in Case C‑62/08 UDV North America [2009] ECR I-1279, paragraph 43). With regard, specifically, to a situation in which the supplier of a service uses a sign corresponding to the trade mark of another person in order to promote goods which one of its customers is marketing with the assistance of that service, the Court considers such a use to fall within the scope of Article 5(1) of Directive 89/104 and Article 9(1) of Regulation No 40/94, where the use is such that a link is established between the sign and the service (see the order in UDV North America, paragraph 47 and the case-law cited). As the Advocate General observed at point 89 of his Opinion and as was submitted by the French Government at the hearing, such a link exists in circumstances such as those of the case before the referring court. eBay’s advertisements create an obvious association between the trade-marked goods which are mentioned in the advertisements and the possibility of buying those goods through eBay. As regards, finally, whether the use of a keyword corresponding to a trade mark is liable to have an adverse effect on one of the functions of the trade mark, the Court has made clear in other cases that there is such an adverse effect where that advertising does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the advertisement originate from the proprietor of the trade mark or from an undertaking economically linked to it or, on the contrary, originate from a third party (Google France and Google, paragraph 99; and Case C‑558/08 Portakabin and Portakabin [2010] ECR I‑0000, paragraph 54). It should be borne in mind in that regard that the need for transparency in the display of advertisements on the internet is emphasised in EU legislation on electronic commerce. Having regard to the interests of fair trading and consumer protection, Article 6 of Directive 2000/31 lays down the rule that the natural or legal person on whose behalf a commercial communication which is part of an information society service is made must be clearly identifiable (Google France and Google, paragraph 86). Advertising originating from the operator of an online marketplace and displayed by a search engine operator must thus, in any event, disclose both the identity of the online-marketplace operator and the fact that the trade-marked goods advertised are being sold through the marketplace that it operates. In view of the foregoing, the answer to the fifth and sixth questions is that, on a proper construction of Article 5(1) (a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, the proprietor of a trade mark is entitled to prevent an online marketplace operator from advertising – on the basis of a keyword which is identical to his trade mark and which has been selected in an internet referencing service by that operator – goods bearing that trade mark which are offered for sale on the marketplace, where that advertising does not enable reasonably wellinformed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods concerned originate from the proprietor of the trade mark or from an undertaking economically linked to that proprietor or, on the contrary, originate from a third party. C – The eighth question concerning the use of signs corresponding to trade marks in offers for sale displayed on the website of an operator of an online marketplace By its eighth question, the referring court asks, in substance, how the display, on the website of the operator of an online marketplace, of signs identical with or similar to trade marks is to be regarded in the light of Directive 89/104 and Regulation No 40/94. In that regard, it is first necessary to point out that, where sales are made through online marketplaces, the service provided by the operator of the marketplace includes the display, for its customer-sellers, of offers for sale originating from the latter. Next, when such offers relate to trade-marked goods, signs identical with or similar to trade marks will inevitably be displayed on the website of the operator of the online marketplace. Although it is true that, in those circumstances, those signs are ‘used’ on that site, it is none the less not evident that it is the operator of the online marketplace that is ‘using’ them, within the meaning of Directive 89/104 and Regulation No 40/94. If a sign identical with, or similar to, the proprietor’s trade mark is to be ‘used’, within the meaning of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, by a third party, that implies, at the very least, that that third party uses the sign in its own commercial communication. In so far as that third party provides a service consisting in enabling its customers to display on its website, in the course of their commercial activities such as their offers for sale, signs corresponding to trade marks, it does not itself use those signs within the meaning of that EU legislation (see, to that effect, Google France and Google, paragraphs 56 and 57). As was stated, inter alia by the United Kingdom Government and the Commission at the hearing and by the Advocate General at points 119 and 120 of his Opinion, it follows that the use of signs identical with or similar to curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 10/15