EBay is generally not liable for trademark infringements its users...

the company’s trademarks directs users to infringing goods, and that because of its involvement in pre-sale activities, sales and after-sales processes, eBay is closely involved in the intellectual property breaches, the opinion said. The U.K. High Court referred the matter to the ECJ for clarification of several questions of EU law, including what operators of Internet marketplaces should be expected to do to prevent trademark violations by users. Although eBay doesn’t itself sell L'Oréal goods online, it provides an alternative source for buying them that coexists with the trademark owner’s proprietary distribution network, the opinion said. By purchasing the trademarks as keywords and leading customers to its marketplace, eBay uses the marks in relation to goods sold by L'Oréal, it said. The use of disputed trademarks as keywords doesn’t necessarily mislead consumers about the origin of the products offered or jeopardize the mark, it said. If eBay merely displays the sign on a website, rather than in the sponsored link of a search engine, it’s simply allowing its clients to use signs identical to the trademark without using those signs itself, the opinion said. The potential harm to the mark owner from the listing of trademark-protected goods by eBay users can’t be attributed to the auction site, it said. Jääskinen discussed an earlier ECJ decision involving Google, in which the court said information service providers storing information at the request of clients are exempt from liability for the information if they're neutral in relation to the data they host. While eBay may not be neutral in this sense because it tells users how to draft ads and monitors the content of listings, that level of involvement shouldn’t result in the loss of the liability exemption, the opinion said. EBay is liable for content it communicates as an advertiser to a search engine, it said. The exemption doesn’t apply where an e-market operator has actual knowledge of illegal activity on the site and allows it to continue, the opinion said. EBay said that despite the complexity of the issues and the preliminary nature of the opinion, it’s “encouraged that the ECJ’s final judgment will reinforce European consumers’ freedom” to buy and sell authentic goods on the Internet. The opinion retains the possibility of prohibiting sales on eBay of testers and unpackaged products, and is balanced and “overall consistent” with L'Oréal’s stance, Bloomberg quoted that company as saying.