The Liability of Intermediaries for Trade Mark Infringement: four scenarios and a spillover?"

Article 17 of the EU Directive on Copyright in the Digital Single Market has sparked a controversial discussion about the correct liability regime for internet intermediaries in copyright law. The parallel issues in trade mark law have received much less attention. I will look at four scenarios: online marketplaces (the “eBay scenario”), search engines (the “Google scenario”), hybrid platforms (the “Amazon scenario”) and access providers (the “British Telecom” scenario). Should the operators only be liable under traditional principles of secondary liability or would a “duty of care” approach be preferable? What is the proper role for safe harbour provisions? Who should pay for takedown and preventive measures? And, of course: will there and should there be a spillover from the developments in copyright law? 

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