Offers on amazon.de are arbitrarily illustrated by an Amazon program algorithm using all stored images, meaning an offer for unpackaged printer cartridges may appear with an image of originally packaged cartridges. Sellers can reasonably be expected to regularly check an offer that has been listed for a longer period to determine whether any infringing changes have been made. Due to the violation of this inspection duty, the Higher Regional Court of Frankfurt am Main (OLG), in a decision published today, imposed a fine of €500 on a seller.
Incorrect Image Assigned to the Offer
The parties are competitors and offer printer toner and ink on amazon.de. In the past, the respondent had "attached" her offer for unpackaged printer toner to the applicant's offer for an original toner kit, which included a corresponding visual representation. This was prohibited by an interim injunction issued by the Regional Court of Hanau.
Seller Had No Knowledge of This
The applicant now requests that a substantial fine be imposed on the respondent for violating this obligation. The respondent claims an unintentional breach of the cease and desist obligation. She stated that when listing her offer on Amazon, she uploads an image of a toner without its original box, using the correct ASIN (Amazon Standard Identification Number) for her product, “Original goods neutrally unpackaged.” Nevertheless, the image changes, so that at one point her uploaded image is visible, while at a later point an image of a toner with its original box appears. Sellers would upload images to Amazon, which the system then arbitrarily selects. She only learned about this now through a chat with Amazon.
Culpability Without Knowledge?
The Regional Court had rejected the application for a coercive measure. The appeal was successful before the Higher Regional Court (OLG). The respondent had culpably violated the cease and desist obligation. She had again attached her offer for unpackaged printer cartridges to visual representations of the manufacturer's original packaging.
Her assertion that the assignment of images of originally packaged cartridges to her offer occurred arbitrarily through Amazon's program algorithm without her involvement does not absolve her. Specifically, she cannot claim to have only now learned about this algorithm. This functionality had, in fact, already been a subject of the oral hearing before the Regional Court. The respondent should therefore have anticipated that Amazon's program algorithm would arbitrarily select any image from all stored images, making it possible for her own offer of unpackaged printer cartridges to appear with an image of originally packaged cartridges.
Higher Regional Court of Frankfurt am Main Requires Regular Offer Review
A seller can generally be expected to regularly check an offer that has been listed for a longer period to determine whether any infringing changes have been made. The respondent culpably failed to comply with this inspection duty. Had she regularly checked her offer after listing it, she would have noticed that, in addition to her offer for unpackaged goods, not only her own uploaded image but also images from other sellers appeared. This should have prompted her to delete her offer – at least under this ASIN.
In the present case, a fine of €500 is deemed appropriate and sufficient.
The decision is not appealable.
Higher Regional Court of Frankfurt am Main, Decision of March 18, 2021, Ref. 6 W 8/18
(preceded by Regional Court Hanau, Decision of December 04, 2017, Ref. 5 O 17/16)
Source: Press release of the Higher Regional Court of Frankfurt am Main, No. 25/2021, of April 16, 2021
