Offers on amazon.de are arbitrarily illustrated from all stored images by means of a program algorithm of Amazon, so that an offer of unpacked printer cartridges can appear with the image of originally packed cartridges. It is reasonable to expect traders to regularly check an offer that has been posted for a longer period of time to see whether infringing changes have been made. In an order published today, the Higher Regional Court of Frankfurt am Main (OLG) imposed an administrative fine of €500 on a trader for breach of this duty of inspection.
Wrong picture was assigned to the offer
The parties are competitors and offer printer toner and ink on amazon.de. In the past, the defendant had "attached" itself to an offer of the applicant for an original toner kit with a corresponding pictorial representation when advertising its printer toner without original packaging. It was prohibited from doing so by an interim injunction of the Hanau Regional Court.
Dealer had no knowledge of this
The applicant now applies for a substantial fine to be imposed on the defendant for breach of this obligation. The defendant invokes a breach of the obligation to cease and desist through no fault of its own. When posting its offer on Amazon, it would transmit the image of a toner without the original box with the correct ASIN (Amazon Standard Identification Number) for its product "Original goods neutral unpacked". At the same time, the image would change, so that at one time the image she had inserted would be shown, whereas at a later time an image of a toner with the original box would be shown. Traders would deposit pictures with Amazon, which the system would select at random. She had only just found this out through a chat with Amazon.
Fault without knowledge?
The Regional Court had rejected the application for an injunction. The appeal was successful before the OLG. The defendant had culpably breached the obligation to cease and desist. It had again attached itself to pictorial representations of the manufacturer's original packaging by offering unpackaged printer cartridges.
Her reference to the fact that the allocation of the image of cartridges in their original packaging to her offer was carried out arbitrarily by Amazon's program algorithm without her intervention did not exonerate her. In particular, it could not plead that it had only now learned about this algorithm. Rather, this function had already been the subject of the oral proceedings before the Regional Court. Accordingly, the defendant should have expected that Amazon's programme algorithm would select any one of the images stored, so that it was possible that its own offer of unpackaged printer cartridges would appear with an image of cartridges in their original packaging.
OLG Frankfurt a.M. requires regular review of offers
In principle, a trader could be expected to regularly check an offer that had been posted for a longer period of time to see whether infringing changes had been made. The defendant had not complied with this obligation to check in a reproachable manner. If the defendant had regularly checked its offer after it had been posted, it would have noticed that not only the offer for unpackaged goods uploaded by the defendant itself appeared next to its offer, but also the images of other traders. This should have prompted her to delete her offer - at least under this ASIN.
In the present case, a fine of € 500 was appropriate, but also sufficient.
The decision is not appealable.
Frankfurt am Main Higher Regional Court, order dated 18.03.2021, ref. 6 W 8/18
(preceded by Hanau Regional Court, order dated 04.12.2017, ref. 5 O 17/16).
Source: Press release of the OLG Frankfurt a.M., No. 25/2021, of 16.04.2021
