Due to the borderless nature of the Internet, it is often a hard question in which country right holders may file an action against online IP infringements. Concerning online infringement of EU trade marks, the CJEUhas now created (some) clarity in AMS Neve v. Heritage – C-172/18. Trade mark holders may sue not only in the infringer’s home country but also in the country to which the infringing offers for sale and advertising are directed. This results from Art 125 (5) UMV (formerly Art 97 (5) CTMR).

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If courts declare a hate posting illegal, they can require social networks (here Facebook) to remove not only this posting but also all posts with the same meaning, even if a different user posted them. EU law is not opposed to this. The CJEU stated this in the Case Eva Glawischnig-Piesczek v Facebook (C-18/18). Contrary to what is often reported, the CJEU held that this obligation only applies once a national court has declared the content unlawful. It does not follow from the decision that social networks are required to pre-emptively remove content before a court order is issued.  

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While there are legal remedies for victims of hate comments or other legal violations on Facebook and similar platforms, an action against the original infringer often comes too late. It is in the nature of social networks that in an instant content can be “shared” to an unlimited number of accounts. Once out there, the infringer himself is no longer in a position to get rid of his creation. Only the operator of the social network has the technical possibilities to do so. But how far does the obligation of the operator to identify and delete illegal content go?

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