Platforms and Intellectual Property: When Safe Harbour Protection Is Lost — The Wish Case

A platform may lose safe harbour protection when it becomes aware of a specific infringement and fails to act promptly, or when its involvement goes beyond neutrally hosting third-party information. If it also adopts the offer as its own and uses the trademark in its commercial communications, it may be liable for its own infringement. The Wish case in Hamburg illustrates why these situations must be examined separately.

What happened with Wish and GHD products

Jemella Group, owner of the GHD trademark for hair-styling products, identified offers of counterfeit appliances on Wish. According to Marcel Pemsel’s report in IPKat, published on 21 October 2026, the company submitted 142 infringement notices between October 2019 and November 2021 and made six test purchases. The dispute reached the Hamburg courts.

The first-instance court had recognised limited liability for failing to act against third-party infringements. On appeal, the Hamburg Higher Regional Court went further: in its judgment of 27 August 2026, case 5 U 58/25, it found that the defendant companies had incorporated the offers into their own commercial activity.

The firm representing GHD reported on the decision, noting rights to information and damages. Its announcement stated that the judgment was not yet final. When preparing this article, we did not verify any subsequent finality; IPKat also indicated that the judgment had not yet been published. The case details therefore follow those sources, rather than a review of the complete court record.

What safe harbour means and why it exists

A service hosting posts from thousands of people does not operate in the same way as a manufacturer or seller of every product. Safe harbour regimes recognise this difference and, subject to conditions, limit intermediaries’ liability for information supplied by users.

In the European Union, Article 6 of the Digital Services Act, or DSA, governs the hosting exemption. Previously, Article 14 of the E-Commerce Directive was the reference point. This legislative change matters: Wish’s historical conduct should not be confused with an indiscriminate, retroactive application of the DSA.

Article 6 combines a lack of actual knowledge of illegal activity or content with, for damages claims, a lack of awareness of facts making the illegality apparent. Once the provider obtains that knowledge or awareness, it must act expeditiously to remove or disable access to the content. There is no universal deadline making every response diligent: the information received and the circumstances matter.

First route: knowing about an infringement and failing to act

A useful notice identifies the specific listing, explains the right affected and supplies reasons and supporting material. Simply saying that “there are counterfeits on the platform” does not establish that every offer is unlawful. Nor does every complaint automatically make disputed content illegal.

Article 16 of the DSA addresses sufficiently precise and adequately substantiated notices. They may give rise to knowledge concerning specific content where a diligent provider can identify its illegality without a detailed legal examination. The response then matters: delays, ignoring clear evidence or leaving a reported offer accessible may jeopardise the exemption.

This does not make intermediaries absolute guarantors of the internet. Article 8 rules out a general monitoring obligation. Court orders and specific measures to stop infringements also have their own treatment: an exemption from damages does not place a provider beyond every removal or prevention order.

Second route: actively participating in the offer

The question changes when a service goes beyond storing what a user chose to publish. The analysis must examine whether it plays an active role giving it knowledge of or control over the relevant information. What matters is how the business operates, rather than merely a clause describing it as an “intermediary”.

In Wish, the report describes a combination of factors: uniform presentation of offers, sellers whose identities were difficult to see, purchasing communications under the platform’s brand, involvement in payments, logistics, returns and discounts. The court considered these circumstances together when attributing a role beyond technical neutrality.

Each factor should not become an automatic rule. Charging for a service, providing a search tool or offering technical assistance does not, on its own, establish that a platform has lost protection. Their significance depends on the actual control and participation in the challenged offers.

Direct infringement is a separate question

The central European precedent is Louboutin v Amazon, explained by the European Commission’s IP Helpdesk. The Court of Justice examined when a well-informed and reasonably observant user may establish a link between another party’s trademark and the operator’s services. The site’s presentation and associated services may make an offer part of the operator’s own commercial communication.

According to IPKat, Hamburg applied that reasoning to Wish and left open whether it should formally be considered the seller: adopting the offers as its own was sufficient. The conclusion does not depend exclusively on who is named as seller in the terms and conditions.

This distinction prevents a common mistake. Asking whether a platform is exempt for third-party information differs from asking whether it uses a trademark in an infringing way itself. Determining the available remedies is a third question: removal, disclosure of transaction information and compensation each require their own legal conditions.

Can authenticity checks work against a platform?

Wish had an authentic-product verification programme. According to the report, the court considered that GHD searches displayed unverified, allegedly counterfeit products despite that tool. The uncomfortable issue was the consistency between what the platform could detect and what it continued to offer.

That is no reason to abandon checks. Article 7 of the DSA protects voluntary investigations carried out in good faith and diligently: moderating content or detecting infringements does not, by itself, remove the exemptions. What matters is the action taken after detection, alongside the service’s overall operation.

A low price alone does not prove counterfeiting either. It may be one indication alongside test purchases, material differences, missing documentation or precise notices from the rights holder.

Different intellectual property infringements follow different rules

Wish concerns trademarks and counterfeit products. It does not, by itself, resolve disputes involving songs, photographs, software or videos. Europe has special copyright rules for certain content-sharing services; in the United States, the DMCA has its own requirements and concerns copyright, rather than general immunity from trademark disputes.

The conduct also matters: hosting a file, linking to it, embedding it elsewhere and selling a product are different operations. We explore that distinction in our article on embedded content and copyright (in Spanish).

What the case contributes to a claim in Argentina

Citing a European judgment does not turn the DSA into Argentine law. Locally, the right affected, the conduct and the applicable regime must be identified: trademarks, copyright, civil liability and, where relevant, consumer relationships. European exemptions do not automatically apply to every local marketplace.

For intermediaries, Argentina’s Supreme Court developed its search-engine liability doctrine in Rodríguez and Gimbutas. Its official communication on Gimbutas highlights actual knowledge and diligent action against unlawful content. However, it concerns search engines and personality rights: it does not predetermine the liability of a marketplace organising sales of counterfeit products.

For an Argentine brand, the practical lesson is to document both the infringement and the service’s involvement. Preserve URLs, dated screenshots, communications, complaint numbers, seller identification and evidence of test purchases where appropriate. Establishing the right asserted remains essential; our guide to trademark registration in Argentina (in Spanish) explains that foundation.

A practical example: the same counterfeit, two scenarios

Imagine a Córdoba business finding products bearing its trademark on a platform. In the first scenario, the seller is identified and controls the offer, and the platform promptly removes the listing after a well-founded notice. That may support its defence without automatically resolving every aspect of the case.

In the second, the platform presents the product within its own commercial experience, makes seller identification difficult, participates in pricing and logistics, and maintains specific offers despite clear notices. The claim must then examine both its knowledge and its involvement. An exemption clause cannot replace that analysis.

If you sell online or need to protect a brand against counterfeiting, our intellectual property advisory service can help assess evidence, notices and appropriate measures for each platform and jurisdiction.

Frequently asked questions

Does losing safe harbour mean paying damages? Not automatically. Loss of the exemption allows liability to be examined under the applicable rules; the claim’s requirements must be established.

Does charging a commission make the platform liable? Not on its own. Its actual involvement and all the circumstances must be assessed.

Does a complaint require removal of any listing? Not every complaint establishes infringement. Precision, supporting reasons and the ability to identify illegality matter.

Does the Wish judgment apply directly in Argentina? No. It is useful comparative material for framing questions and collecting evidence, but a local claim requires its own legal analysis.