Previously, we wrote about a case in which a Dutch court ordered Swedish hosting provider AltusHost to take several websites that sold counterfeit watches offline. The judge in interim injunction proceedings found that AltusHost was responsible for making available the counterfeit products. The case is remarkable in a number of ways.

For example, it is the first known case in which article 2.22 (6) of the Benelux Convention on Intellectual Property is used to classify a hosting provider as intermediary, whose services are used to infringe on trademark rights. Up to now, only article 6:196c of the Dutch Civil Code was used to hold hosting providers liable for infringements on third parties' rights. Another exceptional aspect of the case is that all of the parties are located outside the Netherlands. This does not preclude a Dutch court case, provided that the websites are aimed at the Netherlands. It is not clear if that was the case. However, AltusHost did not challenge the claim of the right holders that the websites were aimed at the Netherlands. 

In court, AltusHost did argue that the brand holders simply could have suspended the disputed domain names through an ICANN procedure. Besides, AltusHost stated that ceasing the hosting of the websites is disproportionate, because it will not lead to the intended purpose: the websites will probably reappear online very quickly, as they can easily move to another hosting provider. The court rejected both arguments. ICANN is not involved in disputes about the content of websites, according to the court. Also, the brand owners already took action against other hosting providers and in other countries, requesting these hosting providers to take the counterfeit websites offline. In general hosting providers cooperate with these request. Taking the websites offline is an effective measure, and proportionate in this case, stated the court.

As the decision is quite out of the ordinary and is made in interim injunction proceedings, it’s influence on future decisions is uncertain.   . 

Read the decision of the court here (in Dutch).

Source: ISPAM

By: Marjolein van der Heide