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 member name "sound-max". In June 2003, a necklace was offered under this member name under the heading "SSSuper ... Tolle ... Halzband (Cartier Art)" for a minimum bid of €30. The description of the item offered stated, among other things: "... Necklace, Cartier Art ... With small pantere, tupische simwol fon Cartier house ...". The plaintiffs considered this to be an infringement of their trademark "Cartier", an infringement of copyright as well as an infringement of the Unfair Competition Act and filed a claim against the defendant for injunctive relief, the provision of information and a declaration of liability for damages. The defendant took the view that he was not responsible for the offending offer because his wife, who is from Latvia, had used his member account on eBay to sell personal items without his knowledge and had auctioned off the item of jewellery in the process.
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.
In the absence of intent, the defendant was not liable as an accomplice or participant for the infringements possibly committed by his wife. However, the defendant could be liable as a perpetrator of an infringement of intellectual property rights and an infringement of competition law, because he had not sufficiently ensured that his wife did not gain access to the control data of the member account. If a third party uses another person's member account on eBay after he has obtained the access data of this member account because the owner has not sufficiently secured them against access by third parties, the owner of the member account must allow himself to be treated as if he had acted himself. The independent ground of attribution for this liability consisted in the risk created by the owner of the member account of ambiguity as to who had acted under the relevant member account on eBay and who could be held liable in the event of an infringement of a contract or an intellectual property right.
Judgment of the Federal Court of Justice of 11 March 2009 - I ZR 114/06 - Halzband
Lower courts:
Frankfurt Regional Court - Judgment of 13 May 2004 - 2/03 O 15/04;
OLG Frankfurt - Judgment of 16 May 2006 - 11 U 45/05
Source: Press release of the Federal Supreme Court No. 55/2009 of 11 March 2009
Due to the ruling of the Federal Supreme Court, every owner of an account on eBay or another Internet auction house should think very carefully about whether they allow third parties to sell goods via their account. In its decision of 29.4.2008 - case number 4 Str 148/08 - the Federal Court of Justice (BGH) already stated that an account holder on eBay is liable to prosecution if he enables a third party to sell his stolen goods via his account.
In the above-mentioned judgement, the Federal Court of Justice has now further established that, under certain circumstances, the account holder of an online auction house may also be liable under civil law if he enables third parties to commit property right infringements or competition law infringements via his account.
Based on current case law, it is therefore not advisable to "lend" one's account to third parties.
Goldberg Attorneys at Law
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: Info@goldberg.de
