Virtual World Law Blog

Internet businesses that are more that passive host sites should take note that a French court found that eBay is a "publisher of online brokering services" because it goes beyond "purely technical, automatic and passive [site host] services." As a result it ruled that eBay did not qualify for the host services infringement liability exception.

For example, the court found that eBay suggests purchases based on visitors' previous purchases, and it enables sellers to employ cross-merchandising and to obtain litigation settlement services for payment or delivery disputes.The court found that eBay profited from the sale of counterfeit Hermès bags because it received commissions on such sales amounts and that its site did not  have a passive and automatic role. The court highlighted the fact that eBay "exercises a determining action on the content of advertisements, in that it reuses, on its own initiative, information aimed at attracting buyers" and that it misused Hermès trademarks by allowing users to list items, present them in an attractive way and route potential buyers to other Hermès offers.