The 20th Civil Senate of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) has ruled that eBay-GmbH is not liable as a contributory infringer for alleged trademark violations, as no similar infringements occurred after Rolex S. A. reported the initial violations.
On April 19, 2007, the Federal Court of Justice had ruled in this case that eBay-GmbH could be considered a contributory infringer if sellers committed trademark infringements on its online platform. However, the due diligence obligations for the internet provider should not be extended to an extent that would jeopardize its entire business model. The Federal Court of Justice had remitted the case to the Higher Regional Court of Düsseldorf.
Consequently, on February 24, 2009, the 20th Civil Senate of the Higher Regional Court of Düsseldorf dismissed the appeal filed by Rolex S. A. and, in this particular instance, rejected a claim for injunctive relief against eBay-GmbH. Rolex S. A. had failed to sufficiently demonstrate that, subsequent to the trademark owner's notifications, similar trademark infringements had occurred which eBay-GmbH ought to have prevented. eBay-GmbH now employs a filter program to block listings that overtly misuse brand names. It was deemed unreasonable to expect the internet provider to scrutinize every listing for potential legal infringements prior to its online publication, as such an obligation would undermine its entire business model.
Higher Regional Court File Reference: I-20 U 204/02)
Source: Press release from the OLG Düsseldorf dated February 26, 2009
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
