“Apps should not use protected materials by protection laws including but not limited to copyright, trademark or patent without permission. … For well known contents, e.g. popular car brands, IT related brands, (Microsoft, Google, Apple, etc) songs, art works, it is required to check if it is used with proper permission. First, reviewer should check that legal statement of the brand. Major companies have legal statement in their web site so we can check if there’s any issue to use brand name or logo and content that infringes the right of likeness is not allowed. … Content that uses another entity’s intellectual property without permission, including but not limited to: software, music, art, and other copyrighted, trademarked or patented materials is not allowed.”
“1. The registration of an EU trade mark shall confer on the proprietor exclusive rights therein. 2. Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the EU trade mark, the proprietor of that EU trade mark shall be entitled to prevent all third parties not having his consent from using in the course of trade, in relation to goods or services, any sign where: (a) the sign is identical with the EU trade mark and is used in relation to goods or services which are identical with those for which the EU trade mark is registered; (b) the sign is identical with, or similar to, the EU trade mark and is used in relation to goods or services which are identical with, or similar to, the goods or services for which the EU trade mark is registered, if there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark; (c) the sign is identical with, or similar to, the EU trade mark irrespective of whether it is used in relation to goods or services which are identical with, similar to or not similar to those for which the EU trade mark is registered, where the latter has a reputation in the Union and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the EU trade mark. 3. The following, in particular, may be prohibited under paragraph 2: (a) affixing the sign to the goods or to the packaging of those goods; (b) offering the goods, putting them on the market, or stocking them for those purposes under the sign, or offering or supplying services thereunder; … (e) using the sign … in advertising …” (a) the sign is identical with the EU trade mark and is used in relation to goods or services which are identical with those for which the EU trade mark is registered; (b) the sign is identical with, or similar to, the EU trade mark and is used in relation to goods or services which are identical with, or similar to, the goods or services for which the EU trade mark is registered, if there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark; (c) the sign is identical with, or similar to, the EU trade mark irrespective of whether it is used in relation to goods or services which are identical with, similar to or not similar to those for which the EU trade mark is registered, where the latter has a reputation in the Union and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the EU trade mark.
“(41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based. (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity 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. … (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.”
“Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) 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; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
“Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”
“81. I agree with Samsung that, when considering the offering of apps in the SGA store, the average consumer is a member of the general public seeking to acquire an app, and given that the apps were only available to those with a Samsung smartwatch, the average consumer must be in that category of person, and will be viewing the app either on their Samsung smartwatch or on a phone connected to their smartwatch. However, I am not persuaded that such a consumer will necessarily be particularly familiar with app stores, or have any clear understanding that the majority of apps available in the SGA store (in particular, watch face apps specifically designed for Samsung smartwatches) will originate from third parties unconnected with Samsung, and not from Samsung or … from Swatch. 82. Further, in this case the concept of average consumer is also relevant in respect of the apps in their downloaded form. In that context, I agree with Swatch that the relevant average consumer is the general public, being persons who acquire watches and/or smartwatches … at all levels of the market, ranging from low end to luxury.”
“43. It is apparent from that case-law that … in order to determine whether the operator of an online sales website incorporating an online marketplace does itself make use of a sign which is identical with a trade mark of another person, which appears in advertisements relating to goods offered by third-party sellers on that marketplace, it is necessary to assess whether a well-informed and reasonably observant user of that website establishes a link between that operator’s services and the sign in question. … 48. Therefore, in order to determine whether an advertisement, published on an online sales website incorporating an online marketplace by a third-party seller active on that marketplace, using a sign which is identical with a trade mark of another person may be regarded as forming an integral part of the commercial communication of the operator of that website, it is necessary to ascertain whether that advertisement may establish a link between the services offered by that operator and the sign in question, on the ground that a well-informed and reasonably observant user might believe that the operator is marketing, in its own name and on its own account, the goods for which the sign in question is being used. 49. In the overall assessment of the circumstances of the present case, the method of presenting the advertisements, both individually and as a whole, on the website in question and the nature and scope of the services provided by the operator of the website are particularly important. 50. As regards, first, the method of presenting those advertisements, it should be pointed out that the need for transparency in the display of those advertisements is provided for in EU legislation on electronic commerce (… L’Oréal …, paragraph 95). Advertisements displayed on an online sales website incorporating an online marketplace must, therefore, be presented in a way which enables a well-informed and reasonably observant user to distinguish easily between offers originating, on the one hand, from the operator of that website and, on the other, from third-party sellers active on the online marketplace which is incorporated therein (see, by analogy, … L’Oréal …, paragraph 94). 51. However, the fact that the operator of an online sales website incorporating an online marketplace uses a uniform method of presenting the offerings published on its website, displaying both its own advertisements and those of third-party sellers and placing its own logo as a renowned distributor on its own website and on all those advertisements, including those relating to goods offered by third-party sellers, may make it difficult to draw such a clear distinction and thus to give the well-informed and reasonably observant user the impression that that operator is marketing, in its own name and on its own behalf, the goods offered for sale by those third-party sellers. Consequently, when those goods bear a sign which is identical with a trade mark of another person, that uniform presentation may establish a link, in the eyes of those users, between that sign and the services provided by that same operator. 52. In particular, where the operator of an online sales website describes the various offerings, from itself or a third party, without distinguishing them as to their origin, as ‘bestsellers’ or ‘most sought after’ or ‘most popular’ for the purpose inter alia of promoting some of those offerings, that presentation is likely to strengthen the impression of the well-informed and reasonably observant user that those goods thus promoted are being marketed by that operator, in its own name and on its own behalf. 53. Second, the nature and scope of the services provided by the operator of an online sales website incorporating an online marketplace to the third-party sellers who offer goods bearing the sign at issue on that marketplace, such as the services consisting inter alia in dealing with the questions of the users relating to those goods or to the storage, shipping and management of returns of those goods, are also likely to give the impression, to a well-informed and reasonably observant user, that those same goods are being marketed by that operator, in its own name and on its own behalf, and may thus establish a link, in the eyes of those users, between its services and the signs placed on those goods and in the advertisements of those third-party sellers.”
“ In my view the Dial Branding on a downloaded watch face, which appears in the location that would be expected on a conventional watch and on a product which Samsung markets for its watch-like qualities, is not used solely or even primarily to denote the origin of the app (although it does that as well for the consumer who is aware of what it is). Rather, the Dial Branding is intended to denote, or at least to appear to denote, the origin of the watch. Further, the smartwatch owner aims to achieve that effect, as does the provider of the app. …”
“112. In order for the storage by a referencing service provider to come within the scope of Article 14 of Directive 2000/31, it is … necessary that the conduct of that service provider should be limited to that of an ‘intermediary service provider’ within the meaning intended by the legislature in the context of Section 4 of that directive. 113. In that regard, it follows from recital 42 in the preamble to Directive 2000/31 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 that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’. 114. Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. 115. With regard to the referencing service at issue in the cases in the main proceedings, it is apparent … that, 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. 116. It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31. 117. Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server. 118. By contrast, in the context of the examination referred to in paragraph 114 of the present judgment, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant. 119. It is in the light of the foregoing considerations that the national court, which is best placed to be aware of the actual terms on which the service in the cases in the main proceedings is supplied, must assess whether the role thus played by Google corresponds to that described in paragraph 114 of the present judgment. 120. It follows that … Article 14 of Directive 2000/31 must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.”
“114. It is clear … that eBay processes the data entered by its customer-sellers. The sales in which the offers may result take place in accordance with terms set by eBay. In some cases, eBay also provides assistance intended to optimise or promote certain offers for sale. 115. … the mere fact that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France …, paragraph 116). 116. Where, by contrast, the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data, on the exemption from liability referred to in Article 14(1) of Directive 2000/31.”
“107. In that regard, it should be noted that, if the referring court were to find, in its examination of Article 3(1) of the Copyright Directive, that either YouTube or Cyando contributes, beyond merely providing its platform, to giving the public access to protected content in breach of copyright, the operator concerned would not be able to rely on the exemption from liability provided for in Article 14(1) of the Directive on Electronic Commerce. 108. It is true, as the Advocate General observed in points 138 to 140 of his Opinion, that the question whether such an operator makes a ‘communication to the public’ within the meaning of Article 3(1) of the Copyright Directive is not, in itself, decisive for the purposes of assessing whether Article 14(1) of the Directive on Electronic Commerce applies. However, the fact remains that where such an operator contributes, beyond merely making the platform available, to giving the public access to such content in breach of copyright, that operator cannot be regarded as fulfilling the conditions laid down in that provision governing its application, as recalled in paragraphs 105 and 106 of the present judgment.”
“218. … it is far from clear that what Samsung did in this case was limited to acts of a ‘mere technical, automatic and passive nature’ such that it lacked knowledge of or control over the data. Rather, in addition to the functional and safety review, the SVMC performed a relatively detailed content review with reference to the CRG. As already discussed, only a relatively small part of that guide relates to third parties’ intellectual property rights. Further, in other respects Samsung also took active steps, including in relation to facilitating and encouraging the design of apps, and marketing its smartwatches by reference to the availability of watch face apps in the SGA store. The commercial benefit it derived from doing so was from sales of its products, rather than any form of charge for storage. It has also promoted some of the apps. 219. Further, a watch face app has relatively limited content. Each app relates to a different watch face (plus, potentially, a related ‘always on’ version of that face). The evidence indicates that whilst a reviewer would not generally download the app on to a watch, they will look at the details, including the app name and screenshots of the watch face. Reviewers are able to, and do, reject apps that are not regarded as meeting Samsung’s policies. As a result, it can be inferred that Samsung, via the reviewer in question, would have obtained ‘knowledge’ of signs that appeared on the watch faces and in the app name, even if it is the case that a gatekeeper role such as that adopted by the SVMC should not be regarded as amounting to ‘control’ of data in the manner contemplated by the CJEU.”
“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”
“[120] … it is for the referring court to consider whether eBay has, in relation to the offers for sale at issue and to the extent that the latter have infringed L'Oréal's trade marks, been “aware of facts or circumstances from which the illegal activity or information is apparent”
“… was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality.”
“ Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with article 14(1)(b) of Directive 2000/31.”