In L’Oreal SA & Ors v Ebay International AG & Ors [2009] EWHC 1094 (Ch), the High Court of Justice, Chancery Division (HCJ) held that Ebay Europe, the second Defendant, is not jointly liable for infringement with the fourth to tenth Defendants. The question of Ebay’s primary liability was referred to the European Court of Justice (ECJ) along with questions relating to: the sale of testers, dramming products and unboxed products infringement, is advertising in the UK the same as ‘putting on the market’ pursuant to Article 7(1) of the Trade Marks Directive, does Ebay Europe have a defence under the E-Commerce Directive and what is the scope of relief required from the national courts.

In Anheuser Busch v. OHIM (Office for Harmonisation in the Internal Market (Trade Marks and Designs)), the European Union’s Court of First Instance upheld a March 2007 decision of the OHIM Board of Appeal that had allowed an opposition by Budějovický Budvar, národní podnik (Budvar)a Czech brewery that markets beer in Europe under the name “Budweiser”, to Anheuser Busch’s attempt to register in the EU the “Budweiser” trademark it holds and uses in North America. The Court held that the evidence of Budvar’s existing mark could be considered despite its late submission to the Board, and that there was sufficient evidence of its use to make Anheuser Busch’s mark unregistrable. This proceeding has had a long and convoluted history: since Anheuser Busch first applied for its Budweiser mark in 1996, two decisions of OHIM’s Opposition Division have gone against it, citing confusion with various word and figurative marks already held by Budvar in EU countries – the first of these was reversed on appeal to the OHIM Board of Appeal, but the second was upheld, and subsequently appealed by Anheuser to the Court of First Instance.