THE BOTTOM LINE
- Hosting providers cannot ignore clear-cut IP infringement. The “safe harbor” provisions of the EU’s Digital Services Act (DSA) do not protect intermediaries who have been given clear notice of obvious trademark infringement on their platforms.
- Intermediaries can be forced to identify anonymous infringers. A court can compel a hosting provider to disclose the name, address, and contact details of a customer when a rights holder has a legitimate interest and no other means of identifying them.
- Brand protection just got more direct. This ruling confirms that rights holders can take effective, swift legal action directly against hosting providers to shut down infringing websites and uncover the identity of the operators behind them.
THE DETAILS
The case involved the TER Group, a German chemical company, against Your Hosting B.V. (trading as Neostrada), a Dutch hosting provider. TER discovered an anonymous website, www.terchemie.com, using a name and logo nearly identical to its registered “TER” trademark and corporate branding, creating a clear risk of public confusion. After attempts to contact the anonymous website owner failed, TER sent a formal notice-and-takedown request to Neostrada. The provider initially failed to take decisive action, prompting TER to seek an injunction.
The court’s decision hinged on the liability of intermediaries under the EU’s Digital Services Act (DSA). Neostrada argued that as a mere hosting provider, it was not in a position to legally assess the infringement claim and was therefore protected from liability. The District Court of The Hague firmly rejected this defense. It ruled that the trademark infringement was so evident—given the high degree of similarity between the mark and the sign used for identical services—that TER’s notice provided Neostrada with “actual knowledge” of the illegal content. This knowledge strips away the liability exemption under Article 6 of the DSA, obligating the provider to act swiftly to remove or disable access to the infringing material.
Furthermore, the court ordered Neostrada to disclose the identity of its customer. Applying the established principles from the landmark Dutch Lycos/Pessers case, the court weighed the competing interests. It found that TER’s legitimate interest in enforcing its intellectual property rights and seeking legal recourse against the infringer far outweighed the website owner’s interest in remaining anonymous, particularly as they continued the infringing activity. This decision underscores that anonymity is not an absolute right and cannot be used as a shield to perpetrate clear IP violations.
SOURCE
Source: District Court of The Hague
