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(b)
definitive removal from the channels of commerce; or
(c)
destruction.
Article 10(1) provides that the judicial authorities shall order that those
measures be carried out at the expense of the infringer, unless particular reasons
are invoked for not doing so.
7.61
Article 10(3) provides that in considering a request for corrective measures, the
need for proportionality between the seriousness of the infringement and the
remedies ordered as well as the interests of third parties shall be taken into
account.
ii. Injunctions
Article 11 provides that Member States shall ensure that, where a judicial
decision is taken finding an infringement of an IPR, the judicial authorities may
issue against the infringer an injunction aimed at prohibiting the continuation
of the infringement. Where provided for by national law, non-compliance with
an injunction shall, where appropriate, be subject to a recurring penalty
payment, with a view to ensuring compliance. Member States shall also ensure
that right holders are in a position to apply for an injunction against inter-
mediaries whose services are used by a third party to infringe an IPR, without
prejudice to Art 8(3) of Directive 2001/29/EC.
32
7.62
7.63
The question of whether injunctions could be obtained against third party
distributors of infringing products was considered by UK High Court in
L'Oreal SA & Ors v EBay International AG & Ors
.
33
In that case L'Oréal called
in aid Art 11 of the EU Civil Enforcement Directive as entitling it to an
injunction against eBay Europe even if the latter was not liable for trade mark
infringement. The final sentence of Art 11 required that EU Member States
should ensure that 'rightholders are in a position to apply for an injunction
against intermediaries whose services are used by a third party to infringe an
intellectual property right…' Although it was accepted that the UK had not
specifically implemented this provision, Arnold J observed that the court's
power to grant injunctions against third parties was part of the law of equity
which applied to the grant of injunctions.
34
He stated that he was 'not treating
Article 11 as having direct effect; but as providing a principled basis for the
exercise of an existing jurisdiction in a new way'.
35
The question then is
32
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information society (OJ L 167 of 22.6.2001, p. 10).
33
[2009] EWHC 1094 (Ch).
34
Ibid at para 447ff.
35
Ibid, at para 454.
