This is an informal case summary prepared for the purposes of facilitating exchange during the 2026 WIPO IP Judges Forum.
Session 7: Online Platforms and Intermediary Liability for IP Infringement
Supreme Court of the Republic of Korea [2012]: 2010Ma817
Date of judgment: December 4, 2012
Issuing authority: Supreme Court of the Republic of Korea
Level of the issuing authority: Final Instance
Type of procedure: Judicial (Civil)
Subject matter: Trademarks
Plaintiff/Appellant: Adidas Aktiengesellschaft & another
Defendant/Respondent: eBay Korea Co., Ltd.
Keywords: Online platform liability; Counterfeit goods; Intermediary liability; Secondary/contributory liability; Notice-and-takedown; Injunction; Third-party sellers
Basic facts: Adidas Aktiengesellschaft & another (Adidas) sought a provisional injunction against eBay Korea Co., Ltd. (eBay Korea), the operator of Gmarket, in relation to the sale of products allegedly infringing Adidas's trademarks.
Gmarket operated as an open online marketplace rather than as a conventional retailer. Individual sellers independently listed products for sale, while buyers and sellers concluded transactions through Gmarket's electronic transaction system. eBay Korea did not itself purchase the goods for resale; rather, it provided the online marketplace and received service fees from sellers.
Held: The Supreme Court ultimately dismissed Adidas's re-appeals against eBay Korea.
Relevant holdings in relation to Online Platforms and Intermediary Liability for IP Infringement:
1. In the context of an online marketplace, the mere fact that information concerning the sale of goods infringing another person's trademark rights is posted on the Internet space provided by the operator, and that transactions concerning such goods are consummated through the operator's electronic transaction system, does not, in and of itself, give rise to tort liability on the part of the operator for the trademark-infringing posting.
2. However, taking into account of the following circumstances such as: the purpose for which the trademark-infringing posting was made; its contents; the period and manner in which it was posted; the extent of the resulting harm; the relationship between the accused infringer and the right holder; the responses of both parties in relation to the posting (e.g. whether a request for removal was made or not); the level of development of the relevant Internet technology; and the economic costs involved in adopting and implementing technical measures, where: (i) the unlawfulness of the trademark-infringing posting made in the Internet space provided by the online marketplace operator is manifest; (ii) the operator has received from the right holder a specific and individual request for the removal and blocking of the particular posting, or, even in the absence of such a direct request, it is objectively apparent from the circumstances that the operator had specific awareness or could have been aware of the existence of the posting; and (iii) the management and control over the relevant posting is technically and economically feasible to the operator, the online marketplace operator is required to take appropriate measures. These include (i) removing the relevant posting; and (ii) preventing the relevant seller from selling the relevant goods through the Internet posting space in question in the future.
If the online marketplace operator fails to take such measures and thereby facilitates the poster’s trademark infringement activity, the operator shall be liable, together with the person who directly posted the information, as a joint tortfeasor by way of aiding and abetting through omission.
3. Nevertheless, even in such cases, the measures required of an online marketplace operator do not include an obligation to provide the trademark right holder with the identity and sales information of the seller who posted information suspected of infringing another person's trademark rights.
4. The respondent, the operator of the online marketplace, had imposed upon its registered sellers, under its seller membership terms and conditions, an obligation not to sell goods infringing trademark rights through the online shopping mall. The respondent had also established and operated a number of mechanisms designed to exclude intellectual-property infringers and sellers engaged in improper or unauthorized sales, including: (i) a rights-infringement reporting system; (ii) a Brand Protection Program (BPP); (iii) the warning or instructional notices system through the Gmarket Sales Manager (GSM) platform; and (iv) continuous monitoring of transactions involving sellers placed on an abnormal-transaction blacklist.
In light of these circumstances, the mere fact that goods infringing, or likely to infringe, the trademark rights in question were being sold through the online marketplace was by itself, insufficient to establish that the respondent had intentionally or negligently failed to discharge its specific and individual post-infringement duty to take preventive measures.
Relevant legislation: Civil Act of the Republic of Korea, Articles 750, 760 (KR155).