Publication 845: Part V
PART V
NOTICE AND AVOIDANCE OF CONFLICT
Article 9
Use Prior to Notification of Infringement
If the use of a sign on the Internet in a Member State is alleged to infringe a right in that Member State, the user of that sign shall not be held liable for such infringement prior to receiving a notification of infringement, if:
(i) the user owns a right in the sign in another Member State or uses the sign with the consent of the owner of such a right, or is permitted to use the sign, in the manner in which it is being used on the Internet, under the law of another Member State to which the user has a close connection;
(ii) any acquisition of a right in the sign, and any use of the sign, has not been in bad faith; and
(iii) the user has provided, in conjunction with the use of the sign on the Internet, information reasonably sufficient to contact him by mail, e-mail or telefacsimile.
Article 10
Use After Notification of Infringement
If the user referred to in Article 9 has received a notification that his use infringes another right, he shall not be held liable if he
(i) indicates to the person sending the notification that he owns a right in the sign in another Member State, or uses the sign with the consent of the owner of such a right, or that he is permitted to use the sign, in the manner in which it is being used on the Internet, under the law of another Member State to which he has a close connection;
(ii) gives relevant details of that right or permitted use; and
(iii) expeditiously takes reasonable measures which are effective to avoid a commercial effect in the Member State referred to in the notification, or to avoid infringement of the right referred to in the notification.
Article 11
Notification Under Articles 9 and 10
The notification under Articles 9 and 10 shall be effective if it is sent by the owner of a right or his representative, by mail, e-mail or telefacsimile, and indicates, in the language, or in one of the languages, used in conjunction with the use of the sign on the Internet, the following:
(i) the right which is alleged to be infringed;
(ii) the identity of the owner of that right and information reasonably sufficient to contact him or his representative by mail, e-mail or telefacsimile;
(iii) the Member State in which that right is protected;
(iv) relevant details of such protection allowing the user to assess the existence, nature and scope of that right; and
(v) the use that is claimed to infringe that right.
Article 12
Disclaimer as a Measure Under Article 10
Member States shall accept, inter alia, a disclaimer, by a user referred to in Article 9, as a reasonable and effective measure under Article 10, if:
(i) the disclaimer includes a clear and unambiguous statement in conjunction with the use of the sign, to the effect that the user has no relationship with the owner of the right which is alleged to be infringed, and does not intend to deliver the goods or services offered to customers located in a particular Member State where the right is protected;
(ii) the disclaimer is written in the language or in the languages used in conjunction with the use of the sign on the Internet;
(iii) the user inquires, before the delivery of the goods or services, whether customers are located in the Member State referred to in item (i); and
(iv) the user in fact refuses delivery to customers who have indicated that they are located in that Member State.
