Is a company which, on behalf of a third-party seller, stores goods that infringe trademark rights, without being aware of that infringement, shall be considered as using that trademark ? May storage be regarded as « stocking » within the meaning of Article 9(2) of Regulation no 207/2009 ? May storage be regarded as « stocking » within the meaning of Article 9(2) of Regulation no 207/2009 ?
This is the question the CJEU answered on April 2, 2020.
According to the Court, the storage company infringes that trademark if that company pursue, like the seller, the aim of offering the goods for sale or putting them on the market.
In this matter, the Court hold that Amazon companies merely stored the goods concerned. Amazon companies neither offered the goods for sale nor put them on the market or did intend to do so.
The Court underlined that only the seller pursued these aims and considered therefore that Amazon companies did not use the trademark.
The Court however reminds that others legal grounds can allow the trademark owner to act against an intermediary who has enable an economic operator to use a trademark unlawfully (art. 11 of the Regulation n°2004/48 dealing with injunctions that can be taken against intermediates ; art. 14(1) of the Regulation 2000/31 dealing with the liability of hosting providers).
