Thanks to Rossella De Sio for collaborating on this article
The Court of Justice of the European Union (CJEU) has clarified and expanded the liability of suppliers under EU product liability rules[1], holding that a supplier can be considered liable for a defective product as a producer if the product bears a trademark that matches the supplier’s name.
Background: Who is liable for a Defective Product?
According to Art. 1 of the Product Liability Directive (85/374/EEC), the producer is to be liable for damage caused by a defect in their product. Article 3 includes in the definition of “producer” not just the actual manufacturer but also anyone who puts their name, trademark or other distinguishing feature on the product, thus presenting themselves as the producer. The logic is simple: if a company appears to be the producer, it should be responsible for the product.
The Case: Ford Italia and the Faulty Airbag
On July 4, 2001, a consumer brought a Ford car from an Italian dealer. The car had been manufactured by Ford WAG and then distributed in Italy by Ford Italia. Later that year, the airbag failed during a traffic accident. The consumer sued both the Italian dealer and Ford Italia for damages.
Ford Italia denied liability as it did not manufacture the vehicle. By decision of 5 November 2012, the Court of Bologna held that Ford Italia incurred non-contractual liability on account of the manufacturing defect. The decision was then confirmed by the Court of Appeal.
The case eventually reached the Court of Cassation, which raises the question to the CJEU on the interpretation of the term “producer” under the Product Liability Directive. Specifically, the court asks whether Article 3(1) of Directive 85/374 must be interpreted as meaning that the supplier of a defective product must be considered to be a “person who … presents him[- or her]self as … [a] producer” of that product, where that supplier has not physically put his or her name, trademark or other distinguishing feature on the product, but the trademark which the producer has put on that product is the same, on the one hand, as the name of the supplier or a distinctive element thereof, and, on the other hand, as the name of the producer.
The CJEU’s ruling: broadening the concept of “producer”
On 19 December 2024, the CJEU gave its answer: even if a supplier does not physically put its name, trademark or another distinguishing feature a product, it may still be treated as a producer if their name matches the name of the manufacturer and name, trademark or other distinguishing feature on the product. This is because limit liability to only those who physically affix a trademark on the product would undermine the purpose of the directive, that is consumer protection.
Implications in the light of the new EU directive 2024/2853 and key takeaway for suppliers
The ruling remains highly relevant under the new EU Directive 2024/2853 (“New Product Liability Directive”)[2], which will replace the Product Liability Directive starting 9 December 2026. While under the New Product Liability Directive updates terminology, replacing the term “producer” with “manufacturer”, the core idea stays the same: if a company “[…] by putting their name, trademark or other distinguishing features on that product, presents themselves as its manufacturer”, then it considered manufacturer under EU law .
CJEU’s message to companies across all industries is clear: you don’t have to make the product to be liable for it. It the business name appears on the product it might be seen as responsible for its safety. Therefore, it is important for suppliers to be transparent in communication with the public: for instance, making sure that packaging, marketing and websites clearly defines who does what, to not be perceived as an apparent “manufacturer”.
[1] Judgment of the Court (Fifth Chamber) of 19 December 2024. Ford Italia SpA v ZP and Stracciari SpA. Case C-157/23.
[2] https://portolano.it/en/newsletter/portolano-cavallo-inform-digital-ip/liability-defective-products-new-directive-designed-make-consumer-protection-more-effective.
