Onder 2.3.11 Parket bij de Hoge Raad 29 mei 2015

“173. In my judgment it is wrong in priciple to interpret Article 3(2) of the Enforecement Directive as requiring rightholders to establish that the relief they seek is likely to reduce the overall level of infringement of their rights. As counsel for Richmont pointed out, Article 3(2) is equally applicable to offline and online infringements. If trade mark owners like Richmont apply for a final injunction to restrain further infringements against a market trader who has been caught selling counterfeit watches, they do not have to show that the injunction is likely to reduce the overall level of infringement of their trade Marks. Nor would it be a defence to such an application for the market trader to say “If consumers can’t buy counterfeit goods from me, they will simply buy them from other market traders”. Nor would the market trader improve his position by pointing to five other traders sellings counterfeits in the same market whom the trade mark owner had not yet sued (but intended to sue in due course). To allow such a defence would not only undermine intellectual property rights, it would also be inimical to the rule of law: consider the application of such reasoning to burglars, for example. There is no reason to treat online infringements differently in this respect. Nor is there any reason to treat intermediaries whose services are being used to infringe by third parties differently in this respect.”

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