Background

Historically, marketplaces have had a relatively comfortable position. Simply providing the technical conditions for someone else to use a trade mark does not mean the platform uses it. But those technical conditions have developed in sophistication considerably in recent years.

Louboutin v Amazon opened the door to developing that position. The CJEU said a marketplace could itself use a third-party mark where its presentation and services leave consumers thinking the platform is marketing the goods. Uniform listings, branding, storage and shipping were all relevant factors.

The first national application of Louboutin was in Audi & VW v Fruugo, where the Dutch court found no infringement by Fruugo, an approach we thought underplayed the role of modern marketplaces.

The German courts now seem rather less receptive to the “we’re just the platform” argument.

GHD v Wish

GHD had identified suspected counterfeits on Wish since 2019, made test purchases, and submitted 140+ infringement reports to Wish over two years. 

The Hamburg Court of Appeal held that Wish was sufficiently involved in the sales to be directly liable.

The Court looked at Wish’s role in the round. Products were presented uniformly, sellers were often hidden behind pseudonyms or generic information, and customers could not contact them directly. Wish also handled order communications, integrated payment, shipping through WishPost, returns and refunds, and applied discounts across the platform. As such, Wish had put itself at the centre of the transaction and made the offers part of its own commercial environment.

Direct liability against Wish, rather than a single infringer, is strategically advantageous, opening the door to damages and wider disclosure about sales, sellers, commissions and fees.

Miele v AliExpress

The Düsseldorf Regional Court reached a similar conclusion in Miele v AliExpress. The case concerned non-original vacuum cleaner bags advertised prominently using the Miele logo. AliExpress was found directly liable for both trade mark and design infringement.

Again, the overall picture provided the canvas; listings looked uniform, while the “Choice” programme included storage, shipping, payments, returns and refunds. The sellers were far less prominent.

Unlike Amazon in Louboutin, AliExpress did not need to sell products itself, rather AliExpress had wrapped the seller’s offer so comprehensively in its own services that consumers saw it as the platform’s offer.

That parallels the UK decision in Montres Breguet v Samsung (see previous posts here and here). Samsung did not sell the third-party watch face apps, but promoted them, supported their development and integrated them into the Galaxy Watch offering.

Essentially, the fact that someone else supplies the infringing product does not necessarily keep the platform out of the firing line.

A wider trend

Nor is this confined to online marketplaces. In 2025, the PUMA/SHAOKE proceedings in Germany considered the role of logistics providers in distributing counterfeits, while the European Commission’s €550 million fine against AliExpress under the DSA, understood to be under appeal, shows the pressure coming from the regulatory side too.

The broader question is increasingly less “are you an intermediary?” and more “what are you actually doing?” and “what is the consumer perception?”

Take-home points

The GHD and Miele decisions are welcome signs of greater alignment between the German and UK approaches to online intermediary liability. It is also welcome in an age of drop shipping and AI-assisted counterfeiting. 

The more involved a platform is in the sale, the harder it is to say that it is simply providing a service to the seller. 

For brands, the question is increasingly whether to go after the platform itself, rather than repeatedly pursuing individual sellers. That needs to be balanced against commercial sensitivities and any goodwill that Legal and Brand Protection teams have built up with the platform. There may also be strength in numbers, whether through several brand owners acting together or through anti-counterfeiting organisations representing brands collectively.

It also makes the choice of where and how to enforce more important. “Platform enforcement tourism”: using the rights and jurisdiction that offer the best route against the platform, rather than simply enforcing wherever the takedown process happens to be easiest can be beneficial. Whatever the approach, brands should also be checking whether takedowns are actually working and whether removed listings simply reappear.

For now, if a platform looks, acts and feels like the retailer, it should not be too surprised if a court treats it like one.