General terms and conditions at Amazon partially invalid

On the occasion of a dispute between two aquatics dealers who both offered goods for sale at an internet department stores' A., the Regional Court of Nuremberg-Fürth had to assess the validity of a clause from the latter's General Terms and Conditions. It found that a provision according to which each dealer grants the department stores' the "worldwide and royalty-free licence to use all registered trademarks, trade names and the names and representations of all persons appearing in the material" is surprising and therefore invalid according to §§ 305c para. 1, 307 BGB.

The plaintiff, a trader from Upper Franconia, wanted to sell freshwater fish and pet food supplies via a large internet department stores'. On the occasion of registering his online shop with the platform, he had also concluded a "contract for the posting of images or content" with the platform, accepting the stipulated condition:

"5. License for Names, Registered Trademarks and Representations. ... You hereby grant to A., its affiliates and licensees, a worldwide, royalty-free licence to use all registered trademarks, trade names and the names and likenesses of all persons appearing in the Material." 

He then produced a product picture for his online shop with his company name in the middle and posted this picture on the sales platform. He was all the more surprised when another trader shop from Middle Franconia suddenly advertised its competing sales items on the internet department stores' with exactly the same picture including logo. The product picture of our plaintiff had been made available to him by the internet shop on the basis of the above-mentioned clause.

The Upper Franconian trader did not want to put up with this and brought an action for injunctive relief against the Middle Franconian competitor before the Regional Court of Nuremberg-Fürth. In its judgement of 4 February 2011, the Fourth Chamber for Commercial Matters of the Regional Court of Nuremberg-Fürth, chaired by Jörg Eichelsdörfer, ruled in his favour:

The plaintiff was entitled to demand that the defendant cease and desist from using the disputed photograph, because it was protected by copyright. The granting of the licence by company A. according to clause 5 of the contractual conditions for names, registered trademarks and representations violated §§ 305c para. 1, 307 BGB and was therefore invalid. This provision was so unusual that the contractual partner of the internet purchasing company A., our plaintiff, did not have to reckon with it. Nor would the provisions in the General Terms and Conditions of the Internet platform A. become customary clauses merely because the set of clauses in which they are found is very widespread. Even provisions in monopolistic terms and conditions that dominate the market could be surprising and are so if they constitute exceptions that run counter to the contracting party's expectations. In the present case, the plaintiff did not have to expect that his picture with his company name would be used for competing offers by any other person without him being left with the decision on this. This was also not reasonable for him.

Nuremberg-Fürth Regional Court, judgement of 04.02.2011 - 4 HK O 9301/10. Final.

Source: Press release Thomas Koch, Judge at the Higher Regional Court, Judicial Press Officer

 

Goldberg Attorneys at Law 2011

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

 

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