The 4th Civil Senate of the Higher Regional Court of Hamm (OLG Hamm) had to deal with the question of whether it is a breach of competition for a competitor to simultaneously offer more than 3 offers with identical items contrary to the principles for the use of the Internet platform eBay as a seller.
The parties sell car audio devices and accessories on the internet on the auction platform eBay. The defendant had offered identical radio trims and adapter cables for individual car types six times each in the "buy-it-now" format on this platform and thus indisputably violated the eBay principles on the listing of identical items. An exception for permissible multiple offers provided for in the principles of use did not exist.
The 4th Civil Senate did not see a breach of competition in the competitor's conduct contrary to the contract vis-à-vis eBay.
A breach of a contractual advertising prohibition concerned the circle of contractual partners and could be sanctioned there, but lack of contractual compliance did not automatically lead to an unfairness offence.
A general obstruction of the market was ruled out. The fact that the competitor appears in the search results list considerably more often with the same products than the competition does not lead to a serious hindrance of the competitors' market opportunities, nor is a noticeable impairment of consumers discernible.
Nor was there any deliberate obstruction of competitors. The provider did not - figuratively speaking - deliberately force itself between the competitors and their customers. The breach of contract did not exceed the limit of anti-competitive behaviour.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm of 21.12.2010 - I-4 U 142/10
Source: Press release of the President of the Higher Regional Court of Hamm
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de