Secondary Liability for Trademark Infringement on the Internet: The Situation in Germany and the EU

Abstract

It is a safe assumption1 that every one of the twenty-eight EU Member States has some form of secondary liability principles within its general tort law. Traditionally, tort law principles require an element of deliberate contribution to, and therefore positive knowledge of, another person’s action. They are therefore of limited value for situations like Internet infringement, because the contributor is typically unaware of persons committing concrete acts of infringement. When the contributor merely provides the technical infrastructure that is used by an anonymous crowd for legitimate as well as illegitimate purposes, the “deliberate contribution” or “positive knowledge” element is difficult to prove. The general principles of tort law are not harmonized within Europe.2 However, regarding Internet services that may be misused for unlawful acts (including, but not limited to, intellectual property infringement), the E-Commerce Directive has created a legal framework for exemptions from liability (the safe harbor).3 In that regard, the E-Commerce Directive is the European equivalent of the U.S. Digital Millennium Copyright Act (DMCA), with the notable distinction that the ECommerce Directive applies horizontally, thus encompassing trademark infringement. Articles 12 through 14 of the E-Commerce Directive stipulate that, regarding transmission, caching and hosting, no liability will ensue if the person