Lacoste v Shein: When a Platform Can No Longer Hide Behind Hosting Status

In a judgment handed down on 8 July 2026, the Paris Court of Appeal substantially strengthened the interim measures that had previously been ordered, at Lacoste’s request, against Roadget Business Pte. Ltd. and Infinite Styles Services Co. Ltd., two companies connected with the operation of the shein.com and fr.shein.com platforms (Paris, Pôle 5, chambre 1, 8 juillet 2026, RG n° 25/12454).

At first sight, the case might have appeared to be a relatively conventional trade mark infringement dispute: clothing, belts and phone cases bearing various representations of a crocodile were being offered for sale on the Shein platforms. The dispute, however, went far beyond a simple comparison of signs. The Court first had to consider the actual role played by the companies operating the platform and whether they could benefit from the liability regime applicable to intermediary service providers. It also examined the potential liability arising from the operation of the platform’s internal search engine, the territorial scope of the interim measures that could be ordered by a French court and, finally, the consequences of failing to disclose the data necessary to assess the scale of the infringement.

The trade mark dispute therefore raised a much broader question: at what point does a platform cease to be merely the place where an infringement occurs and become an actor in that infringement itself?

Crocodiles on the Platform

Lacoste owns several French and European Union word and figurative marks, including the word sign LACOSTE and various representations of its well-known crocodile.

From February 2024 onwards, the company had identified clothing, belts and phone cases on shein.com and fr.shein.com bearing crocodile signs that it considered to infringe its rights. A series of notifications, formal notices and reports drawn up by a commissaire de justice (French judicial officer) followed. Lacoste also challenged the operation of the platform’s internal search engine, arguing that searches for “Lacoste”, or searches combining a product with the word “crocodile”, led users to some of the disputed products.

Lacoste subsequently brought interim proceedings against Roadget Business Pte. Ltd. (a Singapore company connected with the operation of shein.com) and Infinite Styles Services Co. Ltd. (an Irish company connected with fr.shein.com) on the basis of Article L. 716-4-6 of the French Intellectual Property Code (in relation to trade mark infringement) and Article 835 of the French Code of Civil Procedure (in relation to unfair competition and parasitism). The former allows a trade mark owner to seek measures, including against intermediaries whose services are being used, to prevent an imminent infringement of its rights or to prevent the continuation of alleged acts of infringement, provided that the reasonably available evidence makes it likely that its rights are being infringed or that such infringement is imminent. The latter allows the judge hearing an application for interim relief to order protective or restorative measures necessary to prevent imminent harm or put an end to a manifestly unlawful disturbance.

The appeal therefore concerned much more than the existence of trade mark infringement. It required the Court to work its way through the entire chain of online commerce: determining which court could intervene, identifying the actual role played by the different companies behind the platform, characterising the signs and keywords used and, ultimately, determining how far the interim measures could extend.

Marketplace or Seller: Looking Beyond Labels

Roadget and Infinite argued that they acted as hosting providers and technical operators. In particular, they relied on Regulation (EU) 2022/2065 on digital services, the Digital Services Act (DSA).

Article 6 of the DSA provides, subject to certain conditions, an exemption from liability for providers of hosting services in respect of information stored at the request of a recipient of the service. Article 8 of the same Regulation prohibits the imposition on providers of intermediary services of a general obligation to monitor the information they transmit or store, or actively to seek facts or circumstances indicating illegal activity. Infinite relied in particular on its designation by the European Commission as a Very Large Online Platform (VLOP). The companies further argued that the direct sale of the disputed products had been carried out by another company within the group, Infinite Styles Ecommerce Co. Ltd.

The Court, however, refused to stop at the legal characterisations advanced by the companies and instead examined how the platform actually operated. It first identified a consistent body of evidence. The disputed products appeared as “sold by Shein”, unlike offers made by third-party sellers, which were identified as “Marketplace” offers. One of the garments also bore a “Shein” label and had been shipped in packaging bearing the same indication. The terms of use of shein.com stated that “Shein” referred to Roadget, while invoices relating to purchases made through fr.shein.com were issued in the name of Infinite Styles Services and included its EU VAT number. The Court also referred to an email sent to Lacoste by a lawyer within the group expressly referring to “Shein as the seller”.

This body of evidence was reinforced by an element of particular significance: the European Commission’s decision of 26 April 2024 designating Shein as a Very Large Online Platform (VLOP). The Court noted that the decision showed that the marketplace service was provided alongside an online retail service. This supported the conclusion that the platform did not merely connect third-party sellers with consumers but also conducted a parallel direct retail activity.

The Court therefore concluded that the platform was hybrid in nature: it operated both as a marketplace hosting third-party sellers and as a direct sales channel for products marketed under the Shein brand. This distinction is essential. The fact that a platform may benefit, in respect of its intermediary activity, from the legal regime applicable to intermediary services does not mean that this regime extends to every function it performs, particularly where the platform itself participates in the commercialisation of products.

The scope of the judgment must nevertheless be carefully circumscribed. The Court did not hold that Shein was, as a matter of principle, deprived of hosting-provider status, nor did it consider its designation as a VLOP incompatible with the parallel operation of a direct retail business. Ruling in interim proceedings, it considered, “with the degree of certainty required in interim proceedings”, that the evidence sufficiently established Roadget’s and Infinite’s involvement in the disputed transactions and, consequently, their standing as defendants. The legal characterisation therefore attached not to the platform considered as a whole, but to the role it had actually played in the disputed transactions.

The Crocodile, Reputation and Likelihood of Confusion

The protection of reputed trade marks is governed, under French law, by Article L. 713-3 of the French Intellectual Property Code and, for European Union trade marks, by Article 9 of Regulation (EU) 2017/1001. These provisions allow the proprietor of a trade mark with a reputation to oppose the use in the course of trade of an identical or similar sign where, without due cause, such use takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the trade mark.

To establish the reputation of its word and figurative marks, Lacoste had submitted an extensive body of evidence: the history of the brand, press coverage, international presence, stores and points of sale, advertising campaigns, social-media presence, sports partnerships, EUIPO decisions and marketing expenditure. The latter exceeded €37 million between 2020 and 2024 in France, Germany, Spain and Italy.

The Court also referred to Iron & Smith (CJEU, 3 September 2015, C-125/14), concerning the territorial extent over which the reputation of an EU trade mark must be established. It considered that the evidence made it sufficiently likely that several LACOSTE word marks and two figurative crocodile marks enjoyed a reputation in relation to clothing. This characterisation allowed the analysis to extend beyond the question of likelihood of confusion alone.

The signs appearing on the disputed products also represented crocodiles. The Court found significant visual proximity and a conceptual similarity that it described as “extremely strong”. In view of the reputation and distinctive character of the earlier marks, the proximity of the signs and the identity or similarity of the products, it considered that the public was likely to establish a link between the disputed signs and Lacoste’s marks.

According to the Court, the marketing of those products therefore enabled part of the image and prestige attached to the reputed marks to be transferred to the disputed products. Roadget and Infinite were consequently likely to have taken unfair advantage of their attractive power. In other words, it was no longer merely the commercial origin of the products that was at stake. It was the attractive power of the trade mark itself that had become the object of appropriation.

When Infringement Enters the Search Bar

The judgment took on a particularly interesting dimension when it moved beyond the products themselves and considered how consumers had found them. Lacoste also complained that the platform operators had used its word mark as a keyword.

The Court followed the reasoning developed in Google France and Google (CJEU, 23 March 2010, Joined Cases C-236/08 to C-238/08). The CJEU had notably held that a trade mark proprietor could oppose the use of an identical keyword where the advertisement triggered by that keyword did not enable an average internet user, or enabled that user only with difficulty, to ascertain whether the goods or services originated from the trade mark proprietor, an undertaking economically connected with it, or a third party.

French case law subsequently extended this reasoning to natural search engine optimisation. In the Aquarelle judgment of 18 October 2023, No. 20-20.055, the Commercial Chamber of the French Court of Cassation accepted that the use of a sign in a website’s source code could interfere with trade mark rights even though the sign remained invisible to internet users, where the resulting search engine optimisation affected their ability to identify the origin of the goods or services.

In the Shein case, a report had established that entering the word “Lacoste” into the platform’s internal search engine caused, among other things, belts bearing the disputed signs to appear. According to the Court, consumers could therefore believe that those products originated from Lacoste or from one of its partners, an assumption made all the more plausible by evidence that Lacoste had collaborated with numerous other brands on capsule collections.

The Court therefore identified two distinct forms of interference arising from the use of the “Lacoste” keyword. First, given the reputation and distinctive character of the LACOSTE word marks and the identity or similarity of the products concerned, it considered that the public would likely establish a link between the products offered and those marks. Use of the keyword therefore enabled Roadget and Infinite to take unfair advantage of their reputation by transferring their image to products marketed on the Shein platforms. Second, the possibility that consumers might believe those products originated from Lacoste or a partner undertaking created a likelihood of confusion as to their commercial origin and, consequently, made infringement of the relevant word marks likely.

The lesson extends well beyond the circumstances of the case. Trade mark protection on a platform no longer concerns only the name under which a product is presented, its image or the sign physically affixed to it. The algorithmic path that leads the consumer to the product may itself become legally relevant.

“Crocodile”: A Free Word, but Not Necessarily an Innocent Use

The treatment of the word “crocodile” was even more subtle. Lacoste could not, of course, claim a general monopoly over the name of an animal, and the Court recognised no such monopoly. Instead, the judges examined something different: the use of the term as a means of accessing products that were themselves considered likely to be infringing. A report dated 4 September 2024 had established that a search for “t-shirt crocodile” caused, among other things, a baby tracksuit bearing a disputed sign to appear.

Under French law, unfair competition and parasitism are based on Article 1240 of the French Civil Code, but they follow distinct legal rationales. Unfair competition requires wrongful conduct, in this case capable of creating a likelihood of confusion. Parasitism involves the unjustified appropriation, for profit, of an individualised economic value conferring a competitive advantage and resulting, in particular, from another party’s know-how, work or investments.

In this case, the Court considered that French and European consumers associated Lacoste with the crocodile and that the use of the “crocodile” keyword to direct consumers towards infringing products created, in the circumstances established, a wrongful likelihood of confusion. It therefore regarded this as likely to constitute unfair competition and, consequently, a manifestly unlawful disturbance within the meaning of Article 835 of the French Code of Civil Procedure.

The Court went further by also finding parasitism. Lacoste’s investments in its image and in the reputation of its crocodile logo, including more than €37 million in marketing expenditure between 2020 and 2024 in France, Germany, Spain and Italy, constituted, in the Court’s view, an individualised economic value. The use of the “crocodile” keyword to direct consumers towards infringing products enabled the companies concerned to benefit from those investments and to place themselves in Lacoste’s economic wake.

The Court nevertheless had to ensure that the facts relied upon for unfair competition and parasitism were distinct from those forming the basis of the infringement action. It expressly referred to the judgment of the Commercial Chamber of the French Court of Cassation of 26 March 2025, No. 23-13.589, according to which this requirement may be satisfied not only by a material act different from the one relied upon for infringement, but also by an identical material act where it interferes with rights of a different nature.

In the present case, however, the Court identified two materially distinct acts: the use of the keyword “Lacoste”, relied upon for the trade mark infringement claim, and the use of the keyword “crocodile”, relied upon in support of the unfair competition and parasitism claims. This distinction allowed the Court to assess the two forms of conduct separately without departing from the traditional requirement that the claims be based on distinct facts.

A Platform Controls Not Only What It Hosts, but Also What It Organises

For more than twenty years, the European liability regime for online intermediaries was largely structured by Directive 2000/31/EC of 8 June 2000 on electronic commerce, transposed into French law by Law No. 2004-575 of 21 June 2004 on confidence in the digital economy (LCEN). For hosting providers, a central question concerned their knowledge of the illegal nature of stored information and their response once such knowledge had been acquired: had they acted expeditiously to remove that information or disable access to it? This approach, reflected in Article 14 of the Directive and Article 6 of the LCEN, long provided the principal framework for litigation concerning platform liability.

The Digital Services Act did not abandon this model. Article 6 maintains, subject to certain conditions, the liability exemption available to a hosting service provider where it does not have actual knowledge of illegal activity or illegal content or, upon obtaining such knowledge, acts expeditiously to remove or disable access to that content. However, the development of marketplaces, recommender systems, ranking tools and internal search engines increasingly makes an analysis confined to the storage and removal of content insufficient.

A platform does not necessarily merely store information provided by others. It may also organise its visibility, index it, associate it with search queries, recommend particular products and, in some cases, participate directly in their commercialisation.

The judgment of 8 July 2026 illustrates this transformation. The legal issue was not merely that twenty disputed products had been accessible on a platform. It also arose from the fact that they had been presented as sold by Shein and that consumers could be directed towards them through searches directly or indirectly associated with Lacoste. The content, its commercialisation and the architecture through which it was discovered therefore became difficult to separate.

This does not mean that the operation of an internal search engine is, in itself, sufficient to deprive a platform of the benefit of the liability exemption provided for in Article 6 of the DSA in respect of its hosting activity. But where the platform’s role in selling products is combined with its organisation of access to the disputed products, characterising it as a purely technical intermediary becomes more difficult to sustain in relation to the transactions concerned.

From Monitoring to Evidence

The judgment contains one final lesson of particular importance for online brand protection: detecting an infringement is not enough; it must also be possible to assess its scale. Article L. 716-4-6 of the French Intellectual Property Code allows the judge hearing an application for interim relief to award an interim payment where the existence of the damage is not seriously disputable.

In this case, Lacoste sought an interim payment of €650,000 in respect of the interference with its trade marks. The defendants argued, among other things, that the information necessary to assess the damage, including the volume of infringing goods, profits made and lost profits, was unavailable. That argument, however, ultimately worked against them. The first-instance judge had ordered them to provide a certificate from an accountant concerning, in particular, the quantities of products found to be infringing and the turnover generated. That order had not been complied with. The Court therefore observed that the defendants could not rely on the absence of information that they themselves had failed to disclose.

In assessing the damage, the Court consequently relied on the information available to it: the scale of the platform’s traffic (almost 126 million monthly users in the European Union in 2024), the number of products concerned, namely twenty, and the reputation of the trade marks affected. Whereas the judge hearing the interim application at first instance had awarded Lacoste an interim payment of €30,000, the Court of Appeal increased it to €300,000. The amount remained provisional: the merits of the dispute were not being finally determined in these proceedings, and the Court did not make a final assessment of the damage.

This difficulty in measuring the economic consequences of infringement echoes, in a different context, the issues encountered in Fendi v Rolo Fashion, recently analysed on this blog. In that UK case, shortcomings in disclosure had similarly left the judge with an incomplete picture of the infringing activity. The comparison is instructive: in both cases, insufficient available data complicated the assessment of damage, without relieving the court of the need to identify a sufficiently solid basis for its assessment in the evidence that was available.

The evidential lesson therefore extends well beyond the circumstances of this case. Data relating to sales, stock, turnover, searches and product visibility have become an essential component of online infringement litigation.

Trade mark monitoring can therefore no longer be conceived solely as a process of detection followed by removal. As far as possible, it must also enable the structured preservation of evidence: how long a product remained available, changes in its ranking or visibility, the apparent seller, price, number of sales where available, search results, identifiers, timestamped captures and successive modifications. Removing a listing makes an infringement disappear; documenting it can turn it into evidence.