Coty v. Amazon: the CJEU’s missed opportunity

Coty, licensee of the Davidoff trademarks, found bottles of Davidoff Hot Water infringing its rights sold on amazon.de by third-party sellers whose stock was held in Amazon's warehouses under the 'Fulfilled by Amazon' programme; Amazon refused to identify one stockholder. Referred by the Bundesgerichtshof, the CJEU had to decide whether a marketplace that stores infringing goods for a seller 'uses' the trademark. The Advocate General had proposed a nuanced framework distinguishing mere warehousing from active involvement in the offer. The Court retained only the narrowest branch (C-567/18, 2 April 2020): storage alone, without pursuit of the aim of offering or putting on the market, is not use. For the author this is a missed opportunity: it disregards the platform's active role — handling, promotion, payment, customer relations — and confirms that stricter duties (identification of sellers, verification of goods) will have to come from legislation rather than from case law.