Unfair advertising on an Amazon affiliate's website is generally not attributable to either the Amazon companies or an Amazon merchant under Section 8 (2) of the German Act Against Unfair Competition (UWG).
What was the subject of the dispute between the parties?
Within the framework of the so-called Amazon Affiliate Program, an affiliate partner enters into an affiliate partner agreement with the technical operator of the website www.amazon.de. The affiliate partner places a link on their own website to a product available on Amazon. If a customer purchases a product on Amazon via such a link, the affiliate partner receives a commission from the operator of the website www.amazon.de.
A specific affiliate partner allegedly engaged in anti-competitive advertising for a mattress on www.amazon.de. A competitor argued that both the Amazon merchant and the operator of the website www.amazon.de were liable for the affiliate partner's anti-competitive conduct under Section 8 (2) of the UWG.
At first instance, he applied for a preliminary injunction against the operator of the website www.amazon.de and the Amazon merchant. The Mannheim Regional Court rejected the application as inadmissible. The Karlsruhe Higher Regional Court dismissed the plaintiff's appeal as unfounded.
Only the Affiliate Partner is Liable for Their Anti-Competitive Practices
The Karlsruhe Higher Regional Court ruled that the defendants were not liable for the alleged unfair commercial practice of the affiliate partner.
No Imputation Under Section 8 (2) UWG
The sole basis for attribution would have been the provision under Section 8 (2) of the UWG, which stipulates that infringements by employees and agents of an enterprise are attributed to the business owner as if they were their own actions. For liability, it is crucial that the advertising partner is integrated into the operational organization of the business owner in such a way that the success of the commissioned company's business activities benefits the business owner, and the business owner exercises a decisive, enforceable influence over the specific activity of the commissioned company within which the objectionable conduct occurs (BGH GRUR 2009, 1167 para. 21).
Lack of Decisive Influence
According to the Karlsruhe Higher Regional Court, both the operator of the website www.amazon.de and the Amazon merchant economically benefit from the affiliate partner's advertising. However, in this specific case, the decisive influence was lacking. Neither the operator of the website www.amazon.de nor the Amazon merchant dictated to the affiliate partner how to operate their website or design their advertising.
What are the implications of this decision for online retailers?
Initially, you can breathe a sigh of relief and continue to focus on your core business. You do not need to fear being held accountable for the advertising activities of affiliate partners.
However, pay close attention to the proposed arrangements if affiliate partners intend to collaborate with you. You should always ensure that you do not exert decisive influence over the affiliate partner. This would be the case, for instance, if you provide the affiliate partner with specific advertising guidelines.
Source: Higher Regional Court of Karlsruhe, Judgment of May 13, 2020, Ref. 6 U 127/19
Lower Courts: Regional Court of Mannheim, Judgment of December 11, 2019, Ref. 22 O 25/19
We are readily available to advise you on all aspects of IT/IP and data protection law.
GoldbergUllrich Attorneys at Law 2020
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
