A Subtle Explosion?

May 25, 2009

It has been a jumbo bank holiday weekend for lovers of judgments in e-commerce law (they have both had a whale of a time). I counted my blessings when I saw the judgments – but only because I remained blissfully ignorant of their existence until after the holiday and thus felt no pressure to grapple with them during it.

At first, my reaction to the two judgments of Arnold J was disappointment. Everything of interest seemed to have been pushed away like a half-eaten dinner, and the ECJ would have to come up with the answers – 600 paragraphs of judgments and nothing new – and I confess that I was also disappointed because the first report of the L’Oréal case that I had seen suggested a simple win for eBay, which I thought would be unfair. But first impressions were misleading – these judgments repay careful reading

It is true that eBay has won on one of the few points positively decided, namely that it is not a joint tortfeasor with the sellers who were in breach of trade mark laws. However, the findings of fact which are to be found in the judgment (see especially PowerSellers at [59], sellers behaviour at [92] onwards and ‘Ebay could do more’ at [277]) do note bode well for eBay when the ECJ does decide these issues.

Similarly, the judgment on Google adwords has, in my opinion, subtly set up Google for a dirty great fall once the ECJ finally opines on the numerous issues now before it.

It is clear that Arnold J laments the lack of clear guidance from the ECJ, and perhaps we will eventually get something clear. The final result of these cases will depend on the ECJ’s interpretation of the Directive – as part of my bank holiday included watching the film High Noon interpreted in the language of Appalachian dance, I can well understand that interpretation could take us forwards, backwards or practically anywhere.

I must emphasise that these are first thoughts. I would love to hear from readers of this blog if they have analysed the judgments and have a different view. And I am desperate to hear from you if you are interested in writing an article on either of these judgments for the magazine and web site.