Stefan Krawczyk, senior director and counsel government relations, eBay Europe, described the company as "pretty upbeat" following the Court of Justice of the EU ruling. "Will eBay have to change much of what it's doing today? No not really," he said.
The complex judgment addressed issues including the liability of internet service providers for counterfeit goods sold online; the legality of sales of goods from outside the EU; and the legitimacy of keyword advertising.
On many points, the judgment indicated that companies such as eBay can be held liable and should take preventative action.
Speaking shortly after the judgment was published, Krawczyk acknowledged that "the threshold may have been raised" but insisted that eBay already complies with most of the requirements it sets out.
"We're happy to have received clarity, which all players called for. But some points remain open," he added.
In particular he emphasised that the ruling limits what can be expected of ISPs: "The Court is very clear - there is no general monitoring obligation; there should be no impediments to genuine trading; and no blocking of specific brands."
But he added: "I would have expected a bit more which I didn't get." He said eBay hoped for further guidance from future cases, such as that involving SABAM.
In particular, said Krawczyk, clarification is need on what constitutes "playing an active role" for an ISP; what is a "diligent operator"; and what are "proportionate measures".
"It is still up to the national courts to decide facts. That still probably leaves 27 or more different interpretations," he added. "The national court will again come into play: is it proportionate? Does it affect legitimate trade? Judgments will be made in national contexts."
Krawczyk said that the ruling left "grey areas" in particular over the requirements forISPs to take preventative action against sellers of counterfeit goods. The judgment said injunctions to that effect must be "effective, proportionate, and dissuasive and must not create barriers to legitimate trade".
"If a seller sells 100 items and one counterfeit is listed - will the judge say throw him off immediately and permanently? I absolutely don't think so, as it can't lead to blocking of legitimate trade," said Krawczyk.
But he added that if a seller sells 100% counterfeits, then "we kick him out and say don't come back". The grey area is in between these extremes.
Krawczyk also described the facts of the case, which started in 2007, as a "snapshot from the past". He said the company's anti-counterfeiting tools have increased since then, and its business model has also changed.
For example, following the CJEU's judgment in Coty, which found that selling testers amounted to infringement, eBay immediately took action: "As soon as there's clarity, we implement the law."
"We provide a level paying filed for users to structure listings any way they want - the same box of tools. We're not involved in that. We have a very solid notice and takedown system in VeRO. All the tools are in place for those things to be taken down, including cooperation with the rights holder," he said.
He added that clear sanctions are in place, which are communicated to users, and accounts are blocked in the case of serial offenders.
eBay has also moved to encourage companies to set up branded shops on its site. Krawczyk said "dozens" have done so including DeLonghi, Superdry and BMW. "There is less and les room for the little fiddler as space is taken by brand owners themselves," he claimed. "The bottom line is legitimate trade from brand owners is the way forward. This judgment doesn't change that."
L'Oréal has not yet set up a branded site. In addition to the today's case, which arose in the UK, it is involved in litigation with eBay in several European countries, and the companies are in mediation in France.
The luxury goods company has not yet commented on today's ruling.
Asked whether eBay benefits from selling counterfeit goods, as many brand owners allege, Krawczyk denied it was so: "Theoretically if someone sells a counterfeit item you can benefit but on the other side it's important to have only legitimate products. Would we benefit by a few cents from selling dodgy stuff? It's not in our interest. In reality it makes no sense."
