For many traders, selling via an Amazon Marketplace makes up a significant part of their turnover. This is also lucrative because the Amazon platform does all the technical work in the background. For this reason, some traders think they no longer have to worry much about their offers once they have been posted.
However, this is wrong, as the Higher Regional Court of Frankfurt am Main has now ruled.
Violation of interim injunction?
In the present case, two competitors were in dispute within the scope of an injunction procedure. The competitors sell printer toners on Amazon, among other things. The applicant was of the opinion that the defendant had violated an injunction concerning it. The Hanau Regional Court had prohibited the respondent from attaching itself to offers for original toners on Amazon when it did not actually sell original toners. It turned out that the respondent advertised with a photo of an original toner in original packaging, but actually sold a toner in neutral packaging. The Higher Regional Court of Frankfurt am Main then imposed an administrative fine of € 500.00.
What does "attach" to Amazon offers mean?
First of all, it is important to know what is meant by an "attach" in Amazon offers. On Amazon, competitors who want to sell the same product can take the description and photos of already posted offers for a certain ASIN and offer the product at a different price. For the consumer, the offers of the "followers" are visible on the offer page of the "first seller" as "other sellers on Amazon". However, the "followers" have the option of uploading their own product photos.
Why was the respondent's offer anti-competitive?
The defendant had uploaded its own photo when posting its offer, which showed a toner without the original box. However, Amazon's algorithm ensures that all photos uploaded for a certain ASIN are displayed alternately in different listings. In the case of the respondent, her photo was replaced in the meantime by a photo of a toner in the original box. The respondent had not noticed this. During a test purchase, it turned out that the respondent did not deliver the toner in an original box.
Does a trader have to accept responsibility for Amazon's actions?
In short: yes! The Higher Regional Court (OLG) Frankfurt am Main and also the Federal Supreme Court (BGH) have already ruled that due to the possibility of changes to offers on the sales platform Amazon by other traders, there is a risk that originally correct and permissible offers are changed in an infringing manner by actions of third parties. Therefore, it is reasonable to expect the trader to regularly check an offer posted over a longer period of time to see whether infringing changes have been made (see OLG Frankfurt am Main, judgment of 05.12.2019, ref. 6 U 182/18; BGH GRUR 2016, 936 - Angebotsmanipulation bei Amazon). In the present case, the defendant was informed by Amazon that its photo might be exchanged. The defendant did not check its offer in this regard.
What does Amazon have to say about the changing photos?
Amazon confirmed to the respondent that images on Amazon can change. This was even intended by Amazon, that every seller who attaches himself to a product can also upload other images. However, the images should comply with the guidelines and fit the product. In other words, the trader is responsible himself.
What do traders have to do on Amazon?
Traders must regularly check their offers on Amazon. And this not only when they "attach" themselves to other Amazon offers, but also when they offer a product on Amazon for the first time. Due to the possibility of "attaching", other merchants can make use of the offer. If these merchants then upload their own photos, it can happen that the "original" offer displays foreign photos that may not be suitable for the specific offer. In this case, the "original" trader is acting in an anti-competitive manner. The only thing that can help here is regular monitoring. A check at intervals of several weeks is probably already too long.
Whether and to what extent traders can defend themselves against tagging is a whole separate chapter with its own, albeit limited, possibilities.
Source: OLG Frankfurt am Main, Order of 18.03.2021, Ref. 6 W 8/18
Previous instance: Hanau Regional Court, order of 04.12.2017, ref. no. 5 O 17/16
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GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
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Specialist lawyer for information technology law
