Can Amazon be held liable for counterfeit products sold by third parties? Analysis of the CJEU Ruling (ECLI:EU:C:2022:1016)

On December 22, 2022, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued a landmark ruling (ECLI:EU:C:2022:1016) that redefines the liability of e-commerce platforms. The Court interpreted Article 9.2(a) of EU Trademark Regulation 2017/1001, opening the possibility of holding Amazon directly responsible for trademark infringements committed by third-party sellers operating within its marketplace.

This ruling—focused on the famous Louboutin vs. Amazon case—marks a turning point in the fight against online counterfeiting and the liability regime of major digital platforms.

Origin of the Case: Louboutin vs. Amazon

The litigation arose from preliminary questions referred by the courts in Luxembourg and Brussels.
French designer Christian Louboutin, creator of the iconic red-soled high heels, had registered that color as a Benelux trademark and an EU trademark.

Despite this, Amazon offered red-soled products sold without the trademark holder’s consent.

National courts asked the CJEU whether Amazon “uses” the trademark when it:

• allows the sale of third-party products,

• integrates those products on its platform without clearly distinguishing their origin, and

• participates in activities such as storage, shipping, or customer service.

Previous CJEU Doctrine: The Operator Did Not “Use” the Trademark

Before this ruling, European case law relied on decisions such as:

• CJEU, 12 July 2011, L’Oréal vs. eBay (C-324/09)

• CJEU, 2 April 2020, Coty Germany vs. Amazon (C-567/18)

In those cases, the CJEU held that only the third-party seller “uses” the identical or similar sign. The marketplace was not liable as long as:

• it did not use the sign in its own commercial communication, and

• it merely provided technical sales or storage conditions.

This offered platforms like Amazon significant protection against counterfeiting claims.

What Changes Now? The Key: The Perception of the Average Consumer

In this new ruling, the CJEU introduces a decisive criterion: the perspective of the normally informed and reasonably attentive user.

A platform may be “using” the trademark (Article 9.2(a), Regulation 2017/1001) when, from that user’s perspective, it appears to be the actual seller of the product.

This occurs when Amazon:

• mixes its own products with third-party offers without visible distinction,

• labels products with categories like “Best Sellers” or “Most Popular” without indicating origin,

• provides logistical services such as storage, shipping, and returns (FBA program), or

• handles user inquiries regarding third-party products.

In these cases, consumers may reasonably believe that Amazon is the seller of the counterfeit product, triggering its direct liability for trademark infringement.

What Does the CJEU Decide?

The CJEU does not directly declare Amazon liable in this specific case.
It answers the preliminary questions and leaves it to the Luxembourg and Brussels courts to determine, based on the facts, whether:

• the average user perceived the products as sold by Amazon, and

• the company actually “used” the Louboutin trademark in the legal sense of the Regulation.

The essential point is that the Court opens the door—for the first time—for a marketplace to be considered a direct infringer, not just an intermediary, when its involvement causes confusion about the commercial origin of the product.

Impact for Platforms, Consumers, and Trademark Owners

1. For Amazon and similar marketplaces

   • They must clearly distinguish between their own products and third-party products.

   • They could face direct liability for counterfeits.

   • There is a greater need for authenticity controls and listing reviews.

2. For trademark owners

   • The ruling strengthens protection against online counterfeiting.

   • It facilitates direct actions against the platform when it causes consumer confusion.

3. For consumers

   • Greater transparency and legal certainty in online purchases.

   • Lower risk of unintentionally buying counterfeit products.

Conclusion

The CJEU ruling (ECLI:EU:C:2022:1016) represents a turning point: it is no longer sufficient for Amazon to claim it merely acts as an intermediary.
If its design, logistics services, or interface lead consumers to identify third-party products as its own, it can be held directly liable for trademark infringement.

This sets the path toward a more transparent and secure digital ecosystem, where major platforms must exercise heightened diligence.