The 20th civil senate of the Düsseldorf Higher Regional Court (OLG Düsseldorf) ruled that eBay-GmbH was not liable as an interferer for the trademark infringements complained of, because after Rolex S. A. had reported the infringements, there had been no further similar trademark infringements.
The Federal Court of Justice had ruled in this case on 19 April 2007 that the company eBay-GmbH could be considered a tortfeasor if sellers commit trade mark infringements on the internet platform. However, the examination obligations for the internet provider should not be so overstretched that the entire business model is called into question. The Federal Supreme Court had referred the case back to the Düsseldorf Higher Regional Court.
The 20th civil senate of the Düsseldorf Higher Regional Court then dismissed the appeal of Rolex S. A. on 24 February 2009 and denied a claim for injunctive relief against eBay-GmbH in the specific case. Rolex S.A. had not sufficiently shown that, after corresponding notices from the trademark owner, similar trademark infringements had occurred, which eBay-GmbH should have prevented. In the meantime, eBay-GmbH was using a filter programme to block offers which obviously used brand names in an inadmissible manner. It was not reasonable for the internet provider to examine every offer for a possible infringement before publishing it on the internet, because such an obligation would call the entire business model into question.
Reference number of the Higher Regional Court: I-20 U 204/02)
Source: Press release of the OLG Düsseldorf of 26 February 2009
Goldberg Attorneys at Law
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist lawyer for information technology law (IT law)