Abstract

In the Tommy Hilfiger case, the ECJ addressed two questions that have become increasingly topical given the plans of the European Commission to modernize the Enforcement Directive within the framework of implementing the Digital Single Market Strategy. The first question concerns the scope of the term “intermediary” as provided for in the IPRED. As the author explains, although the answer given by the ECJ does not entirely satisfy the requirement of clarity, it provides sufficient guidance as to proper interpretation of Art. 11.3 of the IPRED in cases where a conventional off-line market is at stake. The second question that was posed to the ECJ referred to the scope of an injunction that may be imposed on an intermediary in case its services are used by a third party to infringe intellectual property rights. The author put forward in this respect that the question actually concerned the possibility to extend to the IPRED the principle set out in the E-Commerce Directive that intermediaries cannot be required to engage in general and constant monitoring of their clients.