Sale of counterfeit goods: the lessor can also be prosecuted!

This is what the EU Court of Justice ruled, section. II, with sentence 07/07/2016 n° C-494/15. The case is inspired by a preliminary reference from a Court of the Czech Republic, which addressed the Court of Justice for the purposes of interpreting the art. 11, third sentence, of Directive 2004/48 "Member States shall ensure that owners can request injunctive relief against intermediaries whose services are used by third parties to infringe an intellectual property right".

Previous sentences (see EU Court of Justice, order of 19 February 2009, C-557/07; EU Court of Justice, sentence of 27 March 2014, C-314/12) had ruled in favor of the admissibility of injunction against websites that made cinematographic works available to the public, without the consent of the holders of a right related to copyright.

Similarly, the sentence cited in the epigraph identifies as an "intermediary" the tenant who concludes a contract for the sublease of spaces in a market area with traders of counterfeit branded goods.

Based on the art. 11 of Directive 2004/48/EC, Member States have the duty to ensure that, in the presence of a decision finding the infringement of an intellectual property right, the judicial authorities can issue an injunction against the person responsible to prohibit the continuation of the violation.

Milano, October 14th 2016.

Avv. Giovanni Babino