Statement of Defence (final) - jus.uio.no · 1 STATEMENT OF DEFENCE In the case before the...
Transcript of Statement of Defence (final) - jus.uio.no · 1 STATEMENT OF DEFENCE In the case before the...
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STATEMENT OF DEFENCE
In the case before the Norwegian Arbitral Tribunal:
Louis Vuitton Malletier S.A
France
(Claimant)
ctr.
Ms. Christine Holm
Norway
(Ms. Holm)
and
Finn.no AS
Norway
(Operator)
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PROCEDURAL ISSUES
We submit to the jurisdiction of the arbitration tribunal. DEFENCE
I Against the Claimant’s first claim Ms. Holm claims
Acquittal
Alternatively Ms. Holm being ordered to destroy the ten handbags
II Against the Claimants second claim Ms. Holm claims
Acquittal
III Against the Claimants third claim the Operator claims
Acquittal
VI Against the Claimants fourth claim the Respondents claim
Acquittal
The respondents recognize that ‘Louis Vuitton’ is registered as a trademark (w) and that
the ‘LV’ logo and the Canvas “Monogram” are registered as figurative marks in
accordance with the directive 2008/95/EC, Article 2, and the Danish and the Norwegian
Trademark Acts, Section 2(1).
If the Claimant submits additional rights these will be disputed.
The Respondents recognize that the marks that are shown on the products in question
are identical to the marks of the Claimant.
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SUPPLEMENTARY FACTUAL BACKGROUND
The Claimant states that Ms. Holm on the 15th of June 2010 purchased a counterfeit
handbag during her holiday in Portugal. The Claimant states that Ms. Holm on the 16th
of June 2010 purchased an additional five handbags with the intent to sell these to her
friends with a margin of profit. The Claimant also states that Ms Christine Holm on the
17th of June 2010 imported the purchased handbags to Norway and that Ms. Holm at
that time had doubts regarding the authenticity of the bags. Furthermore, the Claimant
states that Ms. Holm on the 20th of June 2010 managed to sell two of the handbags to
her friends and that Ms. Holm on the 2nd of July 2010 placed an advertisement for the
remaining 13 handbags on the Norwegian online market place ‘finn.no’. The Claimant
states that the Claimant on the 15th of July 2010 became aware of the advertisement at
finn.no and that the Claimant subsequently contacted Ms. Holm and requested that she
removed her advertisement.
All dates stated by the Claimant are unsubstantiated and the factual background is not
accurate.
Ms. Holm purchased the handbags in question in a beach shop in Portugal. The
shopkeeper told Ms. Holm that the reason why the bags were sold at low prices was that
he had acquired the handbags from a bankruptcy estate of another shop. In light of this
information, Ms. Holm decided to purchase an additional amount of five handbags for
her friends. Furthermore, Ms. Holm decided to order an additional amount of ten
handbags for delivery in Norway in case other friends wanted a handbag too.
In Norway it became clear to Ms. Holm that her friends did not want to purchase the
handbags. As a result, Ms. Holm decided to sell the handbags in order to limit her loss
and Ms. Holm therefore placed an advertisement on finn.no. It did not appear from the
advertisement how many bags were offered for sale.
When Ms. Holm received a notice from the Claimant that the handbags in her
possession were allegedly counterfeit she cooperated right away and suggested that she
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could remove tags bearing Louis Vuitton's trademarks from the handbags as well as
make a note in the advertisement that the bags were potentially not original.
Without making any effort to solve this disagreement with Ms. Holm, the Claimant
contacted the Operator of finn.no and requested that the Operator removed Ms. Holm’s
advertisement from the website finn.no. Since the Operator did not comply with this
request, the Claimant filed a Statement of Claims.
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ARGUMENTATION
AUTHENTICITY OF THE HANDBAGS (EXHAUSTION)
To the Respondents’ knowledge, the handbags in question are genuine Speedy Bags
originating from Louis Vuitton. The Claimant has not produced any evidence that this is
not the case.
If the tribunal finds that the handbags in question are in fact authentic Louis Vuitton
handbags, the Respondents submit that the trademark rights to the handbags are
exhausted, cf. the Danish and the Norwegian Trademark Acts, Section 6.
In this case, it is undisputed that the handbags have been purchased in Portugal and
brought to Norway by Ms. Holm, both of which are parts of the European Economic
Area (EEA).
According to the Danish and the Norwegian Trademark Acts, Section 6, the proprietor
cannot prohibit the use of a trademark on goods that have been brought into circulation
by the proprietor or with the proprietor’s consent in an EEA country.
Consequently, the Respondents submit that the Claimant has not documented that the
purchased handbags in question are counterfeit. Furthermore, it has not been
documented that the purchased handbags have been brought into circulation in the EEA
without the Claimant’s consent.
Therefore, the Respondents submit that the Louis Vuitton trademark rights are
exhausted in relation to the purchased handbags in question.
Thus, the actions of the respondents do not constitute trademark infringement.
If the tribunal nevertheless finds that the handbags in question have been proven to be
counterfeit products, the Respondents submit the following:
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MS. HOLM ’COURSE OF TRADE’
The Trademark Acts are only applicable to infringements carried out in the course of
trade, cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article 5 of
Directive 89/104 and Article 9 of Regulation No 40/94.
Ms. Holm denies that she was acting in the course of trade regarding the sale and
purchase of the 15 handbags purchased in Portugal. It should be considered a single
purchase, as it is conducted within a few days. Furthermore, it is a purchase without
organization or plan, which should not be characterized as import within the meaning of
the provisions in the Danish and the Norwegian Trademark Acts and of Directive
89/104 and of Regulation No. 40/94. In addition to this, Ms. Holm only wanted to sell
off the handbags that her friends did not want so she would not get stuck with these and
not suffer an economical loss. Furthermore, Ms. Holm had no organization or plan as to
how she should dispose of the handbags prior to placing the advertisement on finn.no.
It should also be noted that finn.no is a marketplace, which to a large degree is used by
private consumers not acting ‘in the course of trade’.
As a result, the purchase of the handbags does not constitute a trademark infringement,
cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article 5 of Directive
89/104 and Article 9 of Regulation No 40/94.
In any event, Ms. Holm denies that she was acting in the course of trade regarding sale
and purchase of the first five handbags purchased in Portugal. Only Ms. Holm and her
close friends were supposed to use the first five handbags purchased by Ms. Holm. The
total price of approx. € 612.50 (25 % of retail price € 490 apiece x five = € 612.50 ≈
NOK 5,017.50) does not in it-self constitute course of trade. Furthermore, Ms. Holm
had no plan or organization as to how she should sell off the handbags, which indicates
that Ms. Holm did not have the intention to sell the handbags in the course of trade. The
margin of profit taken by Ms. Holm was only enough to cover Ms. Holm’s expenses for
transport, inconvenience, packaging and additional storage space to ensure that the
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handbags were in good condition upon arrival in Norway. The purchase of these five
bags should therefore be considered a favour from a friend and as a consequence not in
the course of trade.
As a result, the purchase of the five handbags does not constitute a trademark
infringement, cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article
5 of Directive 89/104 and Article 9 of Regulation No 40/94.
GOOD FAITH
The bags purchased by Ms. Holm in Portugal are identical or at least very similar to the
Louis Vuitton Speedy bag; in fact, as the Claimant also states in the Statement of
Claims, Louis Vuitton could not with certainty tell if the bags were genuine from the
pictures. Therefore, it cannot reasonably be expected that an average consumer would
be able to separate the genuine bags from the counterfeit ones. Ms. Holm should be
considered an average consumer and could therefore not be expected to distinguish
between authentic and counterfeit handbags.
Therefore, Ms. Holm is in good faith and has not acted negligently.
As explained in ’SUPPLEMENTARY FACTUAL BACKGROUND’ Ms. Holm purchased the bags
from what she thought to be the bankruptcy estate of another shop. It is not uncommon
that shops acquire leftover products from a bankruptcy estate as the bankruptcy estate
sells these off at a cut-rate price to limit their debt. A bankruptcy estate has no regard
for the brand of products sold off and therefore they just sell to the highest bidder.
For this reason, Ms. Holm did not have any reason to believe that the low prices were an
indication that the bags were counterfeit products. Ms. Holm spent approx. NOK 990.00
a piece (total more than NOK 14,850.00) on Speedy bags – a considerable amount,
which she would never have spent had she known that the bags were counterfeit. A
price of NOK 990.00 is a lot of money to pay for a handbag for a young girl and is well
above the average price for a handbag.
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Consequently, the circumstances under which the bags were bought and the price of the
bags are not enough to establish that Ms. Holm has acted negligently.
COMPENSATION
Should the tribunal, in spite of the above, find that Ms. Holm has committed a
trademark infringement, Ms. Holm submits that her good faith regarding the
authenticity of the handbags should be taken into account when establishing if Louis
Vuitton is entitled to compensation.
The Danish and the Norwegian Trademark Acts, Section 43, entitles the right holder to
compensation if the trademark infringement is done intentionally or due to negligence.
As stated above, Ms. Holm has not acted intentionally in any way with regard to the
claimed trademark infringement. The plausible explanation for the low prices and the
fact that it is impossible to see the difference between the bags purchased by Ms. Holm
and the Louis Vuitton Speedy Bag documents that Ms. Holm has not acted negligently.
Thus, there is no basis for compensation.
Should the tribunal find that Ms. Holm knowingly or negligently purchased counterfeit
handbags, Ms. Holm submits that she only placed one advertisement on finn.no where it
is shown along with numerous of similar advertisements without being highlighted or in
any other way stand out from the rest. Consumers are not presented with random
advertisements when visiting the website. The structure of finn.no requires that
consumers do something active to view specific advertisements. Furthermore, the
handbags have not been brought into circulation. Consequently, there has been done no
harm to the reputation of the Claimant and there has been no loss of profit for the
Claimant. In addition, the Claimant has not provided any documentation on lost profits.
As a result, the advertisement has had a limited level of exposure and therefore the
Claimant has suffered no market disruption and the Claimant has suffered no lost sales.
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Regarding the Claimant’s claim on harm to their reputation Ms. Holm submits that none
of the handbags have been brought into circulation. Furthermore, the Claimant has not
documented that the handbags sold by Ms. Holm are of inferior quality than handbags
sold by the Claimant. In addition to this, such a low quantity of handbags cannot cause
harm to the reputation of a large and global company.
As a result, there has not been harm to the Claimant’s reputation.
Ms. Holm submits that since the handbags purchased by Ms. Holm presumably are
authentic the Claimant has already received potential royalty or license fee.
Consequently, the Claimant is not entitled to additionally royalty and license fee.
Should the Tribunal, in spite of this, find that the Claimant is entitled to a reasonable
royalty and a license fee, Ms. Holm submits that it should not affect Ms. Holm
negatively that the Claimant has chosen a business-model, in which the Claimant does
not issue licenses and that this cannot lead to the assumption that a potential royalty or
license would differ from the trade usage. In any event, Ms. Holm submits that the
appointed royalty should not exceed 5 % of the products retail price. The Danish
Maritime and Commercial Court and the Danish Supreme Court have in several cases,
especially regarding parallel import, appointed a royalty of 5 % of the products retail
price, e.g. judgment of the 6th December 2007, V-63-06, from the Danish Maritime and
Commercial Court.
FINN.NO DIRECT LIABILITY
The Operator disputes that the Operator should be held directly liable under trademark
law as stated by the Claimant in the Statement of Claims, p. 17-19.
The Trademark Acts are only applicable to infringements carried out in the course of
trade, cf. the Danish and the Norwegian Trademark Acts, Section 4, and Article 5 of
Directive 89/104 and Article 9 of Regulation No 40/94. It is required that the infringer
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uses the trademark in its own commercial communication i.e. as a distinctive feature for
their own goods or services.
Use ‘in the course of trade’
Finn.no is carrying out a commercial activity with a view to economic advantage when
it offers advertisement space. Finn.no operates ‘in the course of trade’ when it offers
advertisement space and permits advertisers to use signs identical with trademarks.
However, it cannot be concluded from those factors that finn.no itself ‘uses’ those signs
in the course of trade within the terms of the Danish and the Norwegian Trademark
Acts, Section 4 and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.
In a case from The European Court of Justice from the 23rd March 2010, C-236/08 – C-
238/08 (Google Adwords) paragraph 56 it was established that use only constitutes a
trademark infringement when “ (...)the use, by a third party, of a sign identical with, or
similar to, the proprietor’s trademark implies, at the very least, that that third party
uses the sign in its own commercial communication”.
Finn.no does not itself use signs, which are identical with, or similar to, the trademarks
of the Claimant and does not use those signs in its own commercial communication.
Therefore finn.no is not involved in ‘use’ of the trademark in the course of trade within
the meaning of the provisions of the Danish and the Norwegian Trademark Acts,
Section 4 and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 cf. C-
236/08 – C-238/08 (Google Adwords) paragraph 56.
The fact that finn.no is being paid by its advertisers for that service does not change the
fact that finn.no is not involved in use of the trademark in the course of trade. This was
established in C-236/08 – C-238/08 (Google Adwords) paragraph 57: “The fact of
creating the technical conditions necessary for the use of a sign and being paid for that
service does not mean that the party offering the service itself uses the sign”.
Consequently, finn.no does not use the trademarks in the course of trade within the
meaning of the provisions of the Danish and the Norwegian Trademark Acts, Section 4
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and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, cf. C-236/08 –
C-238/08 (Google Adwords), paragraph 56 and 57.
As a result, finn.no is not directly liable under trademark law.
CONTRIBUTORY INFRINGEMENT
The Operator recognizes that a party who does not directly infringe a trademark may
still be liable under a theory of contributory infringement.
However, this theory is modified by the Directive on Electronic Commerce 2000/31/EC
(hereinafter the Directive), which is applicable to providers of information society
services; cf. Article 1(3) of The Directive.
Information Society Service Provider
The definition of a service provider in Article 2 of the Directive refers to Article 1(2) of
Directive 98/34/EC as amended by Directive 98/48/EC. In this directive ”service” is
defined as ”any Information Society service, that is to say, any service normally
provided for remuneration, at a distance, by electronic means and at the individual
request of a recipient of services.”
Finn.no is a provider of an information society service within the meaning of the
Directive and not subjective to the exemptions in Annex V of Directive 98/48/EC or
any other relevant exemptions. Thus, the Directive is applicable to finn.no as a service
provider.
Recital 42 limits the scope of application of the exemptions of liability in the Directive.
It follows from this recital that the exemptions from liability established in that directive
cover only cases in which the activity of the information society service provider is “of
a mere technical, automatic and passive nature, which implies that the information
society service provider has neither knowledge of nor control over the information
which is transmitted or stored”.
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The European Court of Justice has decided on the matter of ‘control’ in the cases C-
236/08 and C-238/08 (Google Adwords). The ECJ pointed out in paragraph 115 that
”with regard to the referencing service at issue in the cases in the main proceedings, it
is apparent that Google with the help of software which it has developed, Google
processes the data entered by advertisers and the resulting display of the ads is made
under conditions which Google controls. Thus, Google determines the order of display
according to, inter alia, the remuneration paid by the advertisers.”
It follows from this that the ECJ emphasizes the fact that Google processes the data,
controls the conditions on which the advertisements are displayed and determines the
order of display. This means that it is evident that the role is active, consistent and
present. Thus, it is these factors that are relevant when determining if the service
provider has “control” in the sense of recital 42 in the preamble to the Directive.
Finn.no does not process the data, control the conditions of the display of the
advertisements or determine the order of display. On the contrary finn.no’s role with
regard to the advertisements is consisting of trying to discover illegal advertisements.
This is done by spot-checking and by making reasonable efforts to discover any illegal
activity at the website. It should be noted that finn.no is not involved in editing the
advertisements.
Thus, finn.no’s role is passive, general and potential
The Claimant argues that finn.no has control over the advertisements and that finn.no
should not be exempted from liability.
The Operator submits that there should be a distinction between the service provider
who merely has the opportunity to exercise the control and the service provider who
actively and consistently exercises the control. The Operator is of the opinion that the
Claimant defines the conception of ’control’ too widely. It must be assumed that the
legislator intended that the exemption should has an actual purpose - to exempt at least
some service providers from liability where it is justified by the legislator. It should be
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noted that all service providers have the opportunity to control. By defining the
conception too widely you exclude all service providers from the exemption and the
exemption looses its raison d’être.
The type of control that the Operator exercises does not go further than what lies in the
nature of the case when being a service provider. This is not the kind of control that is
presented in the recital 42 in the preamble to the Directive. Thus, the exemptions in the
Directive are applicable to the Operator.
Furthermore, the mere fact that the service is subject to payment cannot have the effect
of depriving finn.no from exemptions from liability provided in The Directive cf. C-
236/08 and C-238/08 (Google Adwords), paragraph 116.
Hosting
Article 14 in the Directive is one of the exemptions from liability in the Directive.
According to this article ‘hosting’ is exempted from liability. Hosting is provided when
an information society service consists of the storage of information provided by a
recipient of the service.
The service provider is not liable for the information stored at the request of a recipient
of the service, if the provider does not have actual knowledge of illegal activity or
information and, as regards claims for damages, is not aware of facts or circumstances
from which the illegal activity or information is apparent, cf. Article 14 (a) of the
Directive. Furthermore, the service provider is not liable if the provider, upon obtaining
such knowledge or awareness, acts expeditiously to remove or to disable access to the
information, cf. Article 14 (b) of the Directive.
Article 14 (a)
The English version of Article 14 (a) mentions ‘actual’ knowledge. The Danish version
uses ‘konkret’ and the French version uses ‘effectivement’. It is obvious from these
phrases that the knowledge of the service provider has to be at a certain level and that it
does not include all levels of knowledge.
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It is incorrect when the Claimant states that even a general, abstract knowledge that the
sale of counterfeit products over the Internet is increasing causes the service provider to
become liable. This would mean that no service providers could be to be exempted from
liability, since all service providers are presumably aware of the fact that the Internet is
sometimes used for infringing activities. The perception that even abstract, general
knowledge excludes a service provider from the exemption in Article 14 would mean
that this article in practice loses its relevance and would in fact be meaningless.
The Operator submits that Article 14 (a) is only applicable if a service provider has an
actual knowledge to one or more specific infringements. The Operator is obviously
aware that the Internet is sometimes used for illegal activities, but this kind of general
knowledge is as stated above irrelevant.
This view is also supported by the US courts which on several occasions have rejected
the ‘general knowledge’ theory used by the Claimant, cf. Tiffany v. eBay and Viacom
Int’l Inc. v. YouTube Inc.
Article 14 (b)
According to Article 14 (b) it is required that “the provider, upon obtaining such
knowledge or awareness, acts expeditiously to remove or to disable access to the
information” in order to be exempted from liability.
The Operator does not contest that the Operator has been contacted by the Claimant
who required that the advertisement be removed from the website. However, the
Operator contests that this contact induced such ‘knowledge or awareness’ that is
mentioned in Article 14 (b).
Article 14 (b) must be understood as an actual, documented knowledge or awareness
and not just some vague idea or suspicion of infringement.
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It is important to note that there should be a balance between the consideration for the
advertisers and the consideration for the proprietors. When an advertisement is
removed, it limits the freedom of expression of the advertiser in question. Freedom of
expression is a fundamental human right and limitations hereof should be founded in
clear opposite considerations.
Therefore, it is not only legitimate but also in fact necessary that the Operator requires
documentation and security before removing advertisements. The Claimant was not
even itself convinced that the products in the advertisement were counterfeit, and did
not offer any documentation in this regard. The Claimant was actually not itself in
possession of any knowledge or documentation and was consequently unable to convey
such knowledge to the Operator.
Thus, the notice given by the Claimant did not constitute a sufficient foundation for
limiting the advertisers’ freedom of expression. Therefore, the Operator was entitled to
not take action until further documentation.
Consequently, finn.no is exempt from liability, cf. Directive on Electronic Commerce
2000/31/EC, Article 14.
Should the Tribunal in spite of the above find that the Operator had an obligation to
remove the advertisement in question upon the notice from the Claimant, the Operator
submits that the Operator should not be held liable for possible infringements carried
out prior to the notice. As stated above, the Operator had no actual knowledge of any
specific infringements prior to the notice and can therefore not be held liable before this
time.
Non-statutory exemption from liability
Should the tribunal, in spite of the above, find that the Operator of finn.no is not
exempted from liability, cf. the Directive, the Operator of finn.no submits that the
Operator of finn.no should not be held liable for contributory trademark infringement as
Scandinavian and European trademark law does not impose any legal duty or obligation
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on the Operator of finn.no to prevent infringement of others’ trademarks. In a similar
case the English High Court found that eBay Europe is under no legal duty or obligation
to prevent infringement of third parties' registered trademarks. Accordingly, the High
Court concluded that eBay was not jointly liable for the infringements committed by a
third party (L’Oreal S.A. v. eBay International AG, Case No: HC07C01978).
In spite of this the Operator has taken active measures to prevent sales of counterfeit
products and trademark infringements at the website finn.no. Finn.no has approximately
300,000 active advertisements online every day. Due to the large amount of
advertisements it is not possible for finn.no to perform thorough investigations of all
advertisements. According to finn.no’s ‘Terms of Use’, see Exhibit A, all advertisers
accept that sale of counterfeit products is not allowed on finn.no. In addition to this,
users of finn.no are provided with information and “Guidelines on Sales of Counterfeit
and Pirated”, see Exhibit B, on the use of advertisement on finn.no. It is clearly stated
in these guidelines that selling or purchasing counterfeit products or using trademarks
without consent is not allowed on finn.no. Furthermore, finn.no has established a
procedure that enables the users to report any suspicions on infringements or counterfeit
products to finn.no’s Security Department who will make further investigations. In all,
finn.no is sending a clear signal to users and advertisers that finn.no does not under any
circumstances accept or approve of trademark infringement or sale of counterfeit
products on finn.no.
Additionally, the Operator contests that the Operator is ‘wilfully blind’ as stated by the
Claimant. The Claimant has not provided any documentation to support that the
Operator deliberately fails to investigate any suspensions on wrongdoing. On the
contrary, as mentioned above, finn.no has a Security Department who investigates all
suspensions on wrongdoing.
In the present case the Claimant states that the Proprietor was almost certain that the
handbags sold by Ms. Holm were counterfeit. This indicates that that the Proprietor was
not sure about the authenticity of the bags. Since the Proprietor could not tell with
certainty that the handbags were counterfeit, the Operator could not be expected to
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discover this themselves. The notices that the Operator received from the Claimant did
not provide sufficient information for the Security Department to shut down Ms.
Holm’s advertisement without further ado. Finn.no has a duty of loyalty towards its
advertisers and cannot shut down advertisements without performing further
investigations into reports on infringement.
The Claimant refers to a French case ‘Louis Vuitton Malletier S.A v. eBay’ and argues
that finn.no should have known that certain items were counterfeit and automatically
removed listings simply on the basis of the prices asked and of the quantities offered.
The Operator submits that the Claimant has not documented that Ms. Holm were listing
more than one handbag at a time, and that a price of 40 % the retail price cannot be
considered unreasonable low and in it self indicate counterfeit products.
To conclude, the Operator has done more than can reasonably be expected to prevent
infringement of trademarks and sale of counterfeit products on the website, and the
Operator should not be held liable for aiding and abetting infringements on the website
finn.no.
Furthermore, it should be noticed that it is stated in the Directive that the service
provider does not have and cannot be imposed a general obligation to monitor the
information they transmit or store. Thereby the service provider does not have a general
obligation to actively seek facts or circumstances indicating illegal activity, cf. the
Directive Article 15.
Consequently, the Operator does not have any obligation to monitor advertisements on
the website finn.no neither according to the Directive nor according to general
principles of law.
COMPENSATION
As a conclusion on arguments stated above the Operator submits that the Operator has
not acted negligently. Alternatively, the Operator submits that the Operator at the
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earliest should be held liable from the time when the Operator received notice from the
Claimant.
Should the Tribunal find that the Operator has acted negligently the Operator submits
that the advertisement on finn.no is shown along with numerous of similar
advertisements without being highlighted or in any other way standing out from the rest.
Consumers are not presented with random advertisements when visiting the website.
The structure of finn.no requires that consumers do something active to view specific
advertisements. In addition, the Claimant has not provided any documentation on lost
profits.
As a result, the advertisement has had a limited level of exposure and as explained
above under ‘MS. HOLM – COMPENSATION’, there has been done no harm to the
reputation of the Claimant and therefore the Claimant has suffered no market disruption.
As a result, the Claimant has suffered no lost sales.
The Operator submits that since the handbags purchased by Ms. Holm presumably are
authentic the Claimant has already received potential royalty or license fee.
Consequently, the Claimant is not entitled to additionally royalty and license fee.
Should the Tribunal, in spite of this, find that the Claimant is entitled to a reasonable
royalty and a license fee, the Operator submits that it should not affect the Operator
negatively that the Claimant has chosen a business-model, in which the Claimant does
not issue licenses and that this cannot lead to the assumption that a potential royalty or
license would differ from the trade usage. In any event, the Operator submits that the
appointed royalty should not exceed 5 % of the products retail price. The Danish
Maritime and Commercial Court and the Danish Supreme Court have in several cases,
especially regarding parallel import, appointed a royalty of 5 % of the products retail
price, e.g. judgment of the 6th December 2007, V-63-06, from the Danish Maritime and
Commercial Court.
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SUBMISSION OF EVIDENCE The Respondents reserve the right to call witnesses.
EXHIBIT
Exhibit A – Finn.no ‘Terms of Use’
Exhibit B – Finn.no ‘Guidelines – Sales of Counterfeit and Pirated”
Copenhagen, October 31, 2010
Mai Enø Andersen, Pia Kayser & Mikkel Øskov Jensen
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EXHIBIT A
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EXHIBIT B