Unfair advertising on the website of an Amazon affiliate is generally neither attributable to the Amazon companies nor to an Amazon merchant pursuant to Section 8 (2) UWG.
What were the parties arguing about?
Within the framework of the so-called Amazon affiliate programme, an affiliate partner concludes an affiliate partner contract with the technical operator of the website www.amazon.de. The affiliate partner places a link on its own website to a product available on Amazon. The affiliate partner places a link on its own website to a product available on Amazon. If a customer purchases a product from Amazon via such a link, the affiliate partner receives a commission from the operator of the www.amazon.de website.
A specific affiliate partner allegedly advertised a mattress on www.amazon.de in an anti-competitive manner. A competitor took the view that the trader on Amazon and also the operator of the website www.amazon.de were liable for the anti-competitive behaviour of the affiliate partner under Section 8 (2) UWG.
At first instance, he applied for an interim injunction against the operator of the website www.amazon.de and against the Amazon retailer. The Mannheim Regional Court dismissed the application as inadmissible. The Karlsruhe Higher Regional Court dismissed the plaintiff's appeal as unfounded.
Only the affiliate partner is liable for his competition violations
The OLG Karlsruhe found that the defendants were not liable for the alleged unfair commercial act of the affiliate partner.
No attribution via § 8 para. 2 UWG
The only starting point for attribution would have been the provision under Section 8 (2) UWG, according to which the owner of a business is attributed infringements by his employees and agents as if they were his own acts. The decisive factor for liability was that the advertising partner was integrated into the business organisation of the business owner in such a way that the success of the business activity of the commissioned company benefited the business owner and the business owner had a decisive, enforceable influence on the activity of the commissioned company in whose area the conduct complained of fell (BGH GRUR 2009, 1167, margin no. 21).
Lack of determining influence
According to the OLG Karlsruhe, both the operator of the website www.amazon.de and the Amazon merchant profit economically from the affiliate partner's advertising. However, the determining influence was lacking in the present case. Neither the operator of the website www.amazon.de nor the Amazon merchant prescribed to the affiliate partner how to operate its website or how to design its advertising.
What does the decision mean for online traders?
First of all, you can breathe a sigh of relief and continue to pursue your core business. You don't have to worry about being held accountable for affiliate advertising activities.
However, pay close attention to the intended regulations if affiliate partners want to work with you. You should always make sure that you do not exert any determining influence on the affiliate partner. This would be the case, for example, if you give the affiliate partner specific instructions regarding advertising.
Source: OLG Karlsruhe, judgement of 13.05.2020, ref. no. 6 U 127/19
Previous instances: LG Mannheim, judgement of 11.12.2019, ref. no. 22 O 25/19
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GoldbergUllrich Lawyers 2020
Julius Oberste-Dommes LL.M. (Information Law)
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Specialist lawyer for information technology law
