28 September 2026 • 13 minute read
From platforms to premises: online and offline intermediary liability for IP infringement
Counterfeit and infringing goods circulate through online marketplaces as freely as through trade fairs and market stalls. For brand owners in the consumer goods and retail sector, effective enforcement increasingly requires addressing not only the direct infringers but also the intermediaries (including internet service providers (ISPs), e-commerce platforms, and physical operators such as landlords and trade fair organisers) whose services or premises make that trade possible.
This article surveys intermediary liability across several key jurisdictions: the EU framework, Italy, Spain, Belgium, the Netherlands, the United States and Australia. The aim is to guide brand owners to navigate this complex and evolving area. The focus is on civil remedies against intermediaries, so criminal enforcement, customs and border measures, and related procedural tools (such as disclosure orders) are outside scope. Further, other intermediary types, including payment processors, domain registrars and content delivery networks, may also be relevant enforcement subjects but are not examined in detail here.
Overview of the law
When we look across various regions, we can see that two broad models of intermediary liability predominate. In the European Union and jurisdictions following its approach, injunctions against intermediaries are available without proof of fault: under Article 11 of the IP Enforcement Directive (IPRED)1, rights holders may obtain injunctions against any intermediary whose services are used to infringe, regardless of knowledge or culpability. The Court of Justice confirmed in Tommy Hilfiger v Delta Center that this principle extends to physical marketplace operators.2 In contrast, the United States applies fault-based secondary liability doctrines (contributory infringement, vicarious liability and inducement) which require proof that the intermediary knew or should have known of infringement and failed to act, or that it exercised control over the infringing activity and derived direct financial benefit.3
Despite these structural differences, several cross-jurisdictional trends are emerging:
- First, “dynamic” or rolling injunctions (orders extending to equivalent future infringements by the same wrongdoers) are increasingly accepted, reducing the need for repeat litigation.
- Second, traditional safe harbour regimes (such as those in the E-Commerce Directive (ECD)4 and the US Digital Millennium Copyright Act (DMCA)) are being supplemented by enhanced due diligence obligations under newer instruments like the Digital Services Act (DSA).5
- Third, principles developed for online intermediaries are increasingly being applied to physical operators (such as landlords, fair organisers and payment providers), blurring the online/offline distinction.
- Fourth, whilst website-blocking orders are routine in Europe, they remain atypical in the United States, where relief is generally more narrowly tailored.
- A fifth development has emerged from the Court of Justice’s judgment in Case C-132/25.6 The Court held that preliminary IP injunctions cannot remain effective indefinitely without the commencement of proceedings on the merits, reinforcing the need for a fair balance between effective IP enforcement and the rights of defendants. The ruling is likely to influence the design and duration of intermediary injunctions across the EU, requiring rights holders to ensure that interim measures are followed by timely substantive proceedings.
Remedies also diverge. In the EU, injunctions against intermediaries (including blocking orders) are the primary enforcement tool, while damages depend on separate fault-based rules, are not automatic, and are typically pursued in the ensuing proceedings on the merits. In the US, for copyright infringement, injunctive relief and damages are available upon proof of secondary liability, but DMCA safe harbour compliance and other defences can shield qualifying providers from monetary relief. For trade mark infringement in the US, injunctive relief is available, and damages may be available depending on the facts and circumstances. In Australia, “authorisation” liability for copyright infringement is assessed by reference to statutory factors, including the power to prevent the infringing act and whether reasonable steps were taken to do so.
ISP Liability. EU law provides a layered framework for online intermediary liability. The ECD established safe harbours for “mere conduit”, “caching” and “hosting” services: providers benefited from liability exemptions provided they lacked actual knowledge of illegal activity and acted expeditiously to remove or disable access upon obtaining such knowledge.7 The DSA, which replaced the liability provisions of the ECD from 17 February 2024, retains these exemptions (now set out in Articles 4 to 6 DSA) and introduces enhanced obligations including notice-and-action mechanisms, transparency reporting, and additional due diligence for very large online platforms and very large online search engines.8 Crucially, neither instrument displaces the availability of judicial injunctions against intermediaries under IP-specific legislation.
Article 11 of IPRED requires Member States to ensure rights holders can obtain injunctions against intermediaries whose services are used to infringe, without prejudice to Article 8(3) of the InfoSoc Directive for copyright.9 The Court of Justice has held that such injunctions must be available not only to bring ongoing infringements to an end but also to prevent further infringements.10 In UPC Telekabel Wien, the Court clarified that an “intermediary” includes any operator providing a service that may be used by others to infringe; a special relationship with the infringer is unnecessary.11 Dynamic or “stay-down” injunctions – extending to identical and, in certain circumstances, equivalent future manifestations of the same unlawful content – have been endorsed by the Court of Justice in Glawischnig-Piesczek v Facebook.12
Physical Intermediary Liability. In Tommy Hilfiger v Delta Center, the Court of Justice confirmed that the intermediary injunction framework applies equally to physical marketplaces: an operator renting stalls in a market qualifies as an intermediary and may be enjoined.13 This opens the door for rights holders to seek injunctions against trade fair organisers, market operators and landlords whose premises are used for the sale of infringing goods. Remedies include injunctions (including dynamic forms), orders for withdrawal from the market, corrective measures such as recall and destruction of infringing goods (Article 10 IPRED), and compliance measures; however, damages against physical intermediaries depend on establishing separate fault-based liability under national law.
ISP Liability. Italy implements the ECD through Legislative Decree No. 70/2003, which provides safe harbours for hosting, caching and mere conduit services on terms substantially equivalent to the EU framework.14 Italian courts have robustly used interim measures against online intermediaries. The Supreme Court (Corte di Cassazione) confirmed in Decision No. 7708/2019 that online platforms may be subject to dynamic injunctions requiring the prevention of re-publication of equivalent unlawful content once held illegal.15 Blocking orders against ISPs are available under the Audiovisual Media Services Code for copyright-infringing streaming sites, and administrative takedown powers exist under the procedures of AGCOM (Autorità per le Garanzie nelle Comunicazioni, Italy’s communications regulator).16
Physical Intermediary Liability. Article 124 of the Industrial Property Code allows courts to issue injunctions and withdrawal orders against any intermediary who is a party to proceedings and whose services are used to infringe.17 Whilst there are, at the time of writing, no reported Italian decisions directly addressing trade fair organisers’ liability as physical intermediaries, the Tommy Hilfiger reading of Article 11 IPRED supports treating fair operators and landlords as “intermediaries” under Article 124. In practice, Italian litigants can sue fair operators together with repeat infringers or, in some cases, pursue the operator alone where contributory liability is arguable due to notice and failure to act. The Tribunale di Milano, specialised IP section, has issued dynamic preliminary injunctions in trade mark cases extending to future occurrences of comparable infringement.18 In particular, in cases involving online intermediaries, Milano case law has recognised that injunctions may extend beyond the specific infringement identified to cover future equivalent infringements, successor domains, and materially identical unlawful conduct, provided that the prohibited conduct is sufficiently defined and enforcement is triggered by a specific notice from the rights holder rather than a general monitoring obligation. Dynamic injunctions also tailored to future editions of the same fairs represent a promising enforcement tool. Rights holders should also consider AGCOM-style administrative pressure and contractual leverage (see the Practical recommendations section below) in parallel with judicial enforcement, particularly where injunctive relief alone may be insufficient to deter repeat infringers who simply relocate to the following year’s event.
Remedies include preliminary and permanent injunctions (including dynamic forms), orders for withdrawal from the market, seizure (sequestro) of infringing goods, destruction orders, and compliance measures; damages depend on establishing liability beyond intermediary-related injunctions.
ISP Liability. Spain implemented the ECD through Law 34/2002 on Information Society Services and Electronic Commerce (LSSI). The LSSI establishes liability exemptions for intermediary service providers offering mere conduit, caching and hosting services and imposes cooperation obligations on such providers.19 Since February 2024, these rules operate alongside the directly applicable DSA, which preserves the intermediary liability exemptions while introducing additional compliance obligations. For copyright, the consolidated Intellectual Property Act (TRLPI) authorises cessation and interim measures against intermediaries whose services are used by third parties to infringe, including ISP blocking orders.20 Spanish courts have issued blocking injunctions against ISPs in copyright cases, and the Intellectual Property Commission (within the Ministry of Culture) has administrative powers to require cooperation from service providers.21
More generally, the Spanish audiovisual sector has made extensive use of intermediary injunctions and ISP blocking orders to combat online copyright infringement. Spanish courts have shown a willingness to grant both interim and final measures against service providers whose services are used to facilitate access to infringing content, particularly where large-scale or systematic infringements are concerned.
The area in which these remedies have been most actively pursued is the unauthorised streaming of live sports broadcasts. By way of example, in March 2025, Commercial Court No. 6 of Barcelona dismissed in their entirety the applications for annulment filed by Cloudflare, RootedCON and others against the final judgment issued on 18 December 2024, which ordered the blocking of IP addresses used for the unlawful distribution of LaLiga audiovisual content. More recently, in 2026, Spanish commercial courts extended anti-piracy measures to VPN providers, ordering certain providers to block IP addresses associated with illegal LaLiga broadcasts.
Physical Intermediary Liability. At the time of writing, there is no reported Supreme Court case law specifically addressing physical intermediary liability in trade fairs or markets. However, Spanish law expressly provides for injunctions against intermediaries whose services are used to infringe. In trade marks, Article 41.3 of the Trade Marks Act permits cessation orders against intermediaries whose services are used by third parties to infringe.22 In copyright, Articles 139.1.h and 141.6 of the TRLPI provide parallel mechanisms.23 Spain is bound by Article 11 of the IPRED and CJEU jurisprudence including Tommy Hilfiger, so Spanish courts have the tools to order physical intermediaries to assist in stopping and preventing infringements. Interim measures are available under Spanish civil procedure subject to fumus boni iuris and periculum in mora.24
Consistent with this approach, on occasions Spanish courts have adopted a broad understanding of the concept of intermediary for the purposes of intellectual property enforcement.
For example, courts have held that customs representatives and providers of ancillary services, such as a company engaged to print promotional materials bearing an allegedly infringing sign, should be regarded as intermediaries rather than direct infringers. Although neither case ultimately resulted in injunctive relief being sought or granted against those parties, the reasoning adopted by the courts suggests a willingness to characterise a wide range of actors as intermediaries whenever their services facilitate, support or are otherwise used in connection with an infringing activity. This approach is consistent with the functional interpretation of the concept of intermediary endorsed by the CJEU in cases such as Tommy Hilfiger and UPC Telekabel Wien.
Remedies available in Spain include cessation orders (cese), the seizure (embargo) and destruction of infringing goods, damages (including lost profits and reasonable royalty-based compensation), and publication of the judgment. These remedies are available under both the Trade Marks Act and the TRLPI, subject to the claimant establishing the requisite standing and, in the case of damages, proving fault or knowledge on the part of the intermediary.
ISP Liability. Belgium and the Netherlands implement the ECD through national legislation and have well-developed ISP blocking order practices. For trade mark and design infringement, the Benelux Convention on Intellectual Property (BCIP) provides for a separate ground to issue injunctions against intermediaries whose services are used to infringe the rights in question, if proportionate.25 In the Netherlands, Article 26d of the Copyright Act empowers courts to order injunctions against intermediaries whose services are used to infringe copyright; Dutch courts have issued numerous ISP blocking orders against piracy sites.26 In Belgium, intermediary injunctions across IP rights are implemented in Book XI of the Code of Economic Law, transposing IPRED and InfoSoc mechanisms.27 Worth mentioning is that ISPs can first of all be held liable on the basis of direct (joint) IP infringement, based on either the BCIP or relevant national legislation, if the criteria thereof are fulfilled.
Belgian courts have issued ISP blocking orders, notably in the Pirate Bay case where the Court of Appeal of Antwerp ordered DNS blocking against internet access providers.28 The Belgian courts also take note of the prohibition on general surveillance by the ECD, as illustrated by the Brussels Commercial Court which held in Lancôme v eBay that an intermediary injunction cannot be used to impose a general monitoring duty on an online marketplace.29 In the same vein, the litigation between SABAM (a Belgian management company representing authors, composers and editors of musical works) and internet access provider Scarlet gave rise to the CJEU’s ruling that a general filtering obligation imposed on an ISP is incompatible with EU law.30
In the Netherlands, the Court of Appeal of The Hague considered trade mark infringement liability for online marketplaces in a case between Audi and Volkswagen and online marketplace Fruugo.31 The court held that two categories of factors are relevant to an assessment of direct infringement and primary liability for the offering of goods on that marketplace: (i) the manner in which the sales offers are presented on the marketplace (e.g. uniform with no distinction between their own offers and those of third-party sellers), and (ii) the nature and scope of the services provided by the marketplace operator, in particular whether it offers supplementary services such as storage and shipment of the goods. On the first factor, the court found that the normally informed and reasonably attentive user is well aware that platforms such as Fruugo operate as "classic" marketplaces on which only third-party sellers offer products, as distinct from hybrid platforms. There was accordingly no reason for such a user to assume that Fruugo itself was the seller. On the second factor, it was not established that Fruugo provided supplementary services of a kind that would alter that perception. Next, for indirect infringement and secondary liability due to unlawful facilitation based on the national equivalent of a tort, it remains relevant whether the marketplace optimises or promotes specific third-party offers (on an individual level, rather than at a general, macro level) in a way that would give the operator knowledge of or control over the relevant content and thereby deprive it of its neutral position.
Physical Intermediary Liability. Whilst reported decisions on physical trade fair or market operators as intermediaries remain limited in the Benelux, the CJEU’s Tommy Hilfiger framework supports extension to physical marketplaces.32 The statutory hooks are in place: Article 2.22(6) of the BCIP for trade marks and designs, Article 26d of the Netherlands Copyright Act for copyright, and Belgium’s Book XI of the Code of Economic Law.33
Although most case law imposing injunctions on intermediaries relates to the online world, Belgian courts have also applied the intermediary injunction order framework to various types of offline intermediaries, such as a market organiser34 and shipping agents, customs agents and carriers35, confirming that the concept of “intermediary” must be interpreted broadly and that no fault element is required. Dutch courts have similarly granted injunctions against various types of offline intermediaries on multiple occasions, and have considered them liable in cases where they have facilitated or stimulated infringement. Examples of such conduct are the facilitation of decoding of goods bearing registered trade marks and storage thereof36, active facilitation of trade in infringing goods37 and failure to act promptly to terminate or prevent infringement while being aware of facts or circumstances on the basis of which a prudent market participant should have identified the trade mark infringement.38
ISP Liability. US law combines statutory safe harbours with judge-made secondary liability doctrines. The DMCA provides safe harbours for qualifying online service providers under 17 U.S.C. § 512, conditional on: (i) designating an agent for notice; (ii) adopting and reasonably implementing a repeat infringer policy; (iii) accommodating standard technical measures; and (iv) lacking actual or “red flag” knowledge of infringement. The notice-and-takedown procedure under § 512(c)(3) is the primary mechanism for addressing hosted infringing content. Injunctive relief against qualifying providers is limited to tailored measures under § 512(j) – such as disabling access to specific infringing locations or terminating repeat infringer accounts – rather than broad site-blocking. Qualifying service providers are shielded from monetary damages where they satisfy the safe harbour conditions. Key cases interpreting § 512 include Viacom v YouTube (actual vs red flag knowledge) and BMG v Cox (loss of safe harbour for failure to implement repeat infringer policy).39 More recently, in Cox Communications v Sony Music Entertainment (2026), the US Supreme Court addressed secondary copyright liability outside the safe harbour context, holding that knowledge of infringement alone is insufficient – plaintiffs must demonstrate that the defendant took active steps beyond mere continued service to encourage or facilitate infringement.40
For trade marks, no statutory safe harbour equivalent to the DMCA exists. Intermediary liability is analysed through judge-made secondary liability doctrines: contributory infringement (the Inwood test: intentional inducement or continued supply with knowledge), vicarious liability, and inducement.41 In Tiffany v eBay, the Second Circuit held that generalised knowledge of infringement is insufficient; liability requires knowledge of specific infringing activity and failure to act. However, wilful blindness may be enough.42 The US Supreme Court’s 2026 decisions in Cox Communications and Hikma Pharmaceuticals USA v Amarin Pharma43 (both of which demand active conduct beyond knowledge for secondary copyright and patent infringement liability, respectively) may provide online platforms and other intermediaries with additional arguments for challenging contributory trade mark infringement claims under Inwood’s second prong, although trade mark law’s distinct grounding in consumer protection and unfair competition may constrain broader application of those holdings.
Physical Intermediary Liability. US courts have applied secondary liability principles to physical operators. In Omega SA v 375 Canal LLC, the Second Circuit upheld landlord liability where the owner knew or should have known of counterfeit sales on the premises and failed to act.44 In Coach v Goodfellow, the Sixth Circuit affirmed liability where a flea market operator ignored red flags of infringement.45 Hard Rock Cafe v Concession Services applied the Inwood test to hold a flea market operator contributorily liable.46 These cases establish that landlords and market operators who have knowledge of infringement and the ability to control the premises may face both injunctive relief and damages. However, following Cox Communications and Hikma, defendants in future physical intermediary cases may argue that knowledge and inaction alone should not suffice, and that plaintiffs must demonstrate more active facilitation, a contention that could prompt brand owners to reframe claims under vicarious liability theories emphasising financial benefit and transactional control. Remedies for trade mark counterfeiting secondary liability include permanent and preliminary injunctions, actual damages or the infringer’s profits, statutory damages (in trade mark cases, up to USD 2,000,000 per mark per type of good for wilful infringement under 15 U.S.C. § 1117(c)), and attorney’s fees in exceptional cases.
ISP Liability. Australian law regulates online intermediary liability primarily through copyright “authorisation” liability and a defined safe harbour regime. Under the Copyright Act 1968 (Cth), a person may be liable for authorising another’s infringement, assessed by reference to the section 101(1A) factors: the power to prevent the act, the nature of the relationship with the infringer, and whether reasonable steps were taken to prevent or avoid infringement. In Roadshow Films v iiNet (2012) 248 CLR 42, the High Court held that an ISP did not authorise subscribers’ infringements on the evidence, but confirmed the orthodox authorisation test.47 Part V, Division 2AA provides a safe harbour regime for specified “service providers” (including carriage service providers and certain educational and cultural institutions) that adopt repeat infringer policies and comply with notice-and-takedown procedures; the regime does not extend to all online platforms.
Since 2015, section 115A of the Copyright Act permits website-blocking injunctions against carriage service providers, expanded in 2018 to online search engines and to mirror or location-shifted sites. Leading blocking orders include Roadshow Films v Telstra Corporation [2023] FCA 1167, Foxtel Management v TPG Internet [2018] FCA 933 and Foxtel Management v TPG Internet [2019] FCA 1450.48 With respect to trade marks, platforms may be directly liable where they themselves “use” the sign as a trade mark in the course of trade; the Federal Court found Redbubble directly liable for trade mark infringement (Redbubble Ltd v Hells Angels Motorcycle Corp (Australia) Pty Ltd (2024) 420 ALR 59).49
Physical Intermediary Liability. There are no reported Australian cases imposing IP liability on physical trade fair or market operators for exhibitors’ infringements. Any such claim would likely be framed as joint tortfeasorship or accessorial liability based on fact-specific control and knowledge. Rights holders seeking to proceed against physical operators in Australia would need to establish that the operator had the power to prevent the infringing conduct and failed to take reasonable steps, drawing on the authorisation liability factors by analogy.
Remedies for copyright infringement include blocking injunctions for an online location outside Australia under section 115A, injunctions and an account of profits or damages under section 115 (including additional damages under section 115(4)), delivery up or destruction of infringing copies under section 116, and proportionate compliance orders in authorisation cases. For trade marks, remedies include injunctions, damages or an account of profits, and delivery up of infringing copies under the Trade Marks Act 1995 (Cth). Where accessorial or joint tortfeasor liability is established against a physical intermediary, the full range of remedies would in principle be available, though Australian courts have not yet tested this in practice.
Practical considerations
As shown above, intermediary liability regimes vary significantly across jurisdictions, but there are areas of convergence, including the extension of enforcement measures to physical marketplace operators and the growing acceptance of dynamic relief. For brand owners, navigating this landscape can require both an understanding of local rules and a strategic approach to enforcement. The following considerations may be relevant:
- Building an evidence‑ready enforcement file. Consider gathering records necessary to prove ownership of valid IP rights and contemporaneous proof of past infringements (photographs, stand numbers, exhibitor identities, notice-and-takedown records, platform notices, test purchases and other investigatory material) and linking them to upcoming events or ongoing platform activity. In jurisdictions recognising dynamic injunctions, demonstrating repeated infringements and evolving and evasive conduct by the same wrongdoers may strengthen the case for forward-looking relief.
- Choosing defendants strategically. Where national law permits suing intermediaries alone, consider whether to add direct infringers to reduce procedural challenges and enhance the factual record. In pilot cases, joining infringers with the fair operator or platform may avoid standing or joinder objections, however it may also introduce multi-party defence and cross-border service complexities.
- Framing forward-looking relief precisely. Injunctions may be sought to address current infringements and prevent recurrence by the same wrongdoers (especially those that may have evolved their behaviour to evade detection) and equivalent goods, including “dynamic” relief where available. In EU practice, dynamic orders can be tailored to future editions of fairs, equivalent products, and mirror websites. Applications for such relief may specify: (a) the identity of repeat infringers covered; (b) the products or marks protected; (c) the conduct prohibited; and (d) the events, premises or platforms to which the order applies. Practitioners may consider framing the requested relief so that future violations can be identified through objective and verifiable criteria, without requiring the intermediary to make an independent assessment of infringement. They may also wish to build in a mechanism for the intermediary to seek clarification before acting, and consider proposing reporting obligations so compliance can be monitored. Vague orders may face risk of under-compliance or collateral impact on legitimate traders.
- Calibrating compliance obligations to the intermediary type. When proceedings involve market operators, fair organisers, or landlords, remedies may mandate proportionate, workable measures. The nature of those measures may reflect the distinct characteristics of different physical intermediaries: trade fair organisers have short-term, high-control relationships with exhibitors and can implement event-specific measures (exhibitor vetting, stand-level monitoring during events, refusal to re-let to repeat infringers, post-order reporting), whereas landlords typically have longer-term leases and less operational involvement. When proceedings involve landlords, relief requests may be framed around specific notice requirements, reasonable response periods, and graduated measures rather than immediate eviction, as courts could approach relief requests differently depending on the intermediary’s level of control and involvement. Online platforms may wish to specify notice-and-takedown timelines, repeat infringer policies, and proactive monitoring where proportionate.
- Planning for jurisdiction and timing. Practitioners may consider filing early to account for service (especially cross-border) and court scheduling. In jurisdictions with specialised IP courts (e.g., Milan, Düsseldorf) or in the US where federal courts apply the law under differing standards, venue selection may be a relevant consideration. For trade fairs, practitioners may wish to ensure applications are filed well in advance of the event to secure a decision in time.
- Anticipating limits and fill gaps. The DSA’s online-specific provisions do not apply to physical operators, but IPRED and Tommy Hilfiger jurisprudence provide the governing framework for physical intermediary injunctions in EU/EEA jurisdictions. Where national case law on physical intermediary liability is sparse, courts may consider these EU-level principles, local procedural rules, and persuasive foreign authority. Practitioners may also take into account the Court of Justice’s ruling in Case C-132/25,50 which clarified that provisional IP injunctions cannot remain in force indefinitely without the commencement of proceedings on the merits. Practitioners may therefore wish to structure applications for interim relief with a clear litigation strategy to ensure compliance with procedural requirements concerning the timely initiation of substantive proceedings and the proportional duration of interim measures.
- Using contractual mechanisms proactively. Where litigation is uncertain or untested, contractual leverage may achieve comparable results. Rights holders can negotiate with fair organisers, landlords, and platforms for: (a) exhibitor or tenant warranties against IP infringement; (b) rights to conduct on-site inspections; (c) contractual suspension or eviction rights upon notice of infringement; (d) indemnification clauses; and (e) mandatory IP compliance training.
If you have questions about anything raised in this article, please get in touch with the authors or your regular DLA Piper contact.
