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

When consumers buy products through an online marketplace, they do not always pay much attention to who is actually selling them. A product may appear alongside items sold directly by the platform, carry familiar delivery labels and be presented through the same interface as thousands of other offers. For consumers, this creates a convenient shopping experience. For trademark owners, however, it raises a difficult legal question: when a third-party seller offers counterfeit goods through a marketplace, can the platform itself be held responsible?

The Court of Justice of the European Union addressed this question in its Grand Chamber judgment of 22 December 2022 in Christian Louboutin v Amazon, Joined Cases C-148/21 and C-184/21 (ECLI:EU:C:2022:1016). The judgment did not declare Amazon liable for trademark infringement, but it clarified the circumstances in which an online marketplace may itself be considered to use a protected trademark. Its significance lies in the relationship between the way a platform presents third-party offers and the impression it creates in the minds of consumers.

The dispute: red soles on an online marketplace

Christian Louboutin is known for his high-heeled shoes with distinctive red soles, which are protected by registered trademarks. The dispute arose after products bearing signs identical to Louboutin’s trademark appeared in advertisements on Amazon’s websites without his consent. Some of the products were offered by third-party sellers, while Amazon also sold products directly through its own retail business.

Louboutin argued that Amazon’s involvement went beyond simply providing an online space for independent sellers. The company displayed third-party offers alongside its own products and provided services associated with the transactions, including storage, shipping and customer service. In his view, the way these services and offers were integrated could lead consumers to believe that Amazon itself was marketing the products in question.

The national courts in Luxembourg and Belgium referred questions to the Court of Justice, asking how the concept of trademark “use” under Article 9(2)(a) of Regulation (EU) 2017/1001 should apply to an online marketplace operating in this way. The issue was not simply whether counterfeit goods had been advertised on Amazon, but whether the relevant conduct could legally be attributed to the platform itself.

From intermediary to commercial actor?

The distinction matters because EU trademark law does not automatically make a marketplace responsible for every infringement committed by a third-party seller using its services. Previous judgments, including L’Oréal v eBay (C-324/09) and Coty Germany v Amazon (C-567/18), had examined the difference between the use of a trademark by a seller and the provision of services by an intermediary. The fact that a platform stores or dispatches goods does not, by itself, mean that it uses the trademark appearing on those goods.

The Louboutin judgment developed this analysis by examining how the offers are presented to consumers. The Court considered whether a normally informed and reasonably attentive user could perceive the sign as forming an integral part of the platform operator’s own commercial communication. This is a more specific inquiry than simply asking whether the platform participates in the transaction or benefits financially from it.

The presentation of offers is therefore important. If a marketplace displays its own products and third-party products in a way that makes their commercial origins difficult to distinguish, consumers may understand the offers as coming from the platform itself. The integration of third-party advertisements into the platform’s overall commercial presentation, together with the services offered to sellers and customers, may be relevant to that assessment.

However, no single feature automatically establishes trademark use. Providing storage, delivery, customer support or other services does not, on its own, make the platform the seller of the goods or establish direct trademark infringement. The Court’s reasoning requires an assessment of the overall impression created by the platform’s presentation and the circumstances of the case.

What did the Court actually decide?

The judgment is important precisely because the Court did not resolve the underlying infringement dispute by declaring Amazon liable. Its task was to interpret EU law in response to questions from the national courts, which retained responsibility for applying that interpretation to the facts before them.

The Court explained that an operator of a website combining its own sales with a third-party marketplace may, in certain circumstances, be regarded as using a sign where the way it presents third-party offers leads users to perceive that sign as part of its own commercial communication. The national courts must assess whether that condition is met in the particular case.

This distinction prevents two equally misleading conclusions. It would be wrong to assume that an online marketplace can never be directly responsible for trademark use merely because the product was offered by a third party. It would be equally wrong to conclude that every platform providing integrated services to sellers automatically becomes responsible for their infringements. The judgment establishes a way of assessing attribution, not a blanket rule imposing liability on all marketplaces.

Why the judgment matters for digital commerce

For marketplace operators, the ruling highlights the legal importance of how their platforms are designed and how offers are presented. Clear information about the identity of the seller can help consumers understand who is offering a product, although the judgment does not create a simple checklist under which a particular label or interface feature guarantees immunity from liability. The overall commercial presentation remains central to the analysis.

Trademark owners also gain a more precise basis for arguing that a platform’s own conduct may constitute trademark use in appropriate circumstances. Where a marketplace blurs the distinction between its own retail activity and third-party offers, the owner may be able to argue that the platform should not be treated as a mere intermediary. Whether that argument succeeds will depend on the evidence and the applicable legal requirements.

For consumers, the case illustrates a broader challenge in online shopping: the interface may make the purchasing process look seamless, even when the legal relationships behind it are quite different. Consumers benefit from knowing who is selling a product, particularly when authenticity and the protection of a brand are at stake.

In my view, the judgment’s lasting value lies in recognising that a platform’s legal role cannot always be assessed separately from the way it organises its commercial environment. Online marketplaces are not simply passive spaces in which buyers and sellers happen to meet; their design, branding and services can influence how consumers understand the origin of the products they see. At the same time, that commercial involvement should not be confused with automatic liability for every act of a third-party seller.

The challenge for EU law is to preserve the distinction between intermediaries and direct commercial actors without allowing the structure of an online platform to obscure who is actually responsible for the use of a protected trademark. The Louboutin judgment offers a framework for addressing that problem, while leaving the factual assessment to the national courts.

Ultimately, the case is about more than counterfeit shoes. It raises a question that is increasingly important in digital commerce: when a platform shapes the way consumers perceive a product, where should the law draw the line between providing a marketplace and participating in the commercial use of a trademark?