On 11 March 2009, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition, trademark and copyright law, had to decide under which conditions the owner of a member account (account) on the internet auction platform eBay is liable for other persons offering goods using his account and thereby infringing the rights of third parties.
The defendant is registered on eBay under the username "sound-max". In June 2003, a necklace was listed under this username with the title "SSSuper ... Great ... Necklace (Cartier Art)" at a minimum bid of €30. The item description included phrases such as: "... Necklace, Art Cartier ... With small panther, typical symbol of Cartier House ...". The plaintiffs identified this as an infringement of their "Cartier" trademark, a copyright violation, and a breach of the Act Against Unfair Competition, seeking injunctive relief, disclosure of information, and a declaration of liability for damages from the defendant. The defendant contended that he was not responsible for the contested listing, asserting that his Latvian wife had used his eBay account without his knowledge to sell personal items, including the auctioned jewelry.
The Regional Court and the Higher Regional Court - without examining whether the plaintiffs' rights had been infringed by the offer of the necklace - dismissed the action because the defendant, who had had no knowledge of the offer posted on the internet by his wife, was in any case not responsible for any infringements.
The Federal Supreme Court overturned the appeal judgment and referred the case back to the Court of Appeal.
While the defendant may not be liable as a co-perpetrator or accessory for potential legal infringements committed by his wife, given the absence of intent, liability as a primary infringer of intellectual property rights and a violator of competition law could arise. This is because he failed to adequately prevent his wife from accessing the member account's control data. Should a third party utilize another's eBay member account, having gained access to its credentials due to the account holder's insufficient security measures against third-party access, the account holder must be treated as if they had personally conducted the actions. The independent rationale for this attribution of liability stems from the ambiguity created by the account holder regarding the identity of the party operating under the specific eBay member account, and who could be held accountable for contractual or intellectual property infringements.
Judgment of the BGH of March 11, 2009 – I ZR 114/06 – Necklace
Lower Courts:
District Court Frankfurt – Judgment of May 13, 2004 – 2/03 O 15/04;
Higher Regional Court Frankfurt – Judgment of May 16, 2006 – 11 U 45/05
Source: Press Release of the BGH No. 55/2009 of March 11, 2009
Based on the judgment of the Federal Court of Justice, every holder of an account with eBay or another online auction house should carefully consider whether to allow third parties to sell goods through their account. The Federal Court of Justice had already determined in its decision of April 29, 2008 – file reference 4 Str 148/08 – that an eBay account holder commits a criminal offense if they enable a third party to sell stolen goods through their account.
Through the aforementioned judgment, the Federal Court of Justice has further established that, under specific circumstances, an online auction house account holder may incur civil liability if they enable third parties to commit intellectual property infringements or competition law violations via their account.
In light of current jurisprudence, it is therefore generally inadvisable to "lend" one's account to third parties.
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: Info@goldberg.de
