Anyone selling used goods must clearly mark these goods as used goods. Otherwise, there is an infringement of competition and warnings may be issued.
The case:
The Regional Court of Munich I had to decide on a case in which Amazon had offered used smartphones for sale. Initially, the product information did not contain any indication that the smartphones were used goods. Later, Amazon added the words "Refurbished Certificate" to the product information.
The Regional Court of Munich I ruled that Amazon, without explicitly informing its customers that the smartphones were used items, withheld essential information about a product feature that was important for the purchase decision. The notification of the used condition of the smartphone was necessary so that the buyer could decide whether or not to buy a used smartphone at all before deciding to purchase the item.
The indication "Refurbished Certificate" was not sufficient for this purpose. The average consumer would not recognise from this indication that an article marked in this way was a second-hand article.
Furthermore, the Regional Court of Munich I considered the reference "Refurbished Certificate" to be misleading, as an average consumer was not familiar with the English term "refurbished" and one could not imagine anything under the term. Even if the addition were literally translated as "refurbished certificate", no one could understand that the smartphone was used.
(Judgment of the Regional Court of Munich I of 30.07.2018, Ref. 33 O 12885/17 - not legally binding)
Our recommendation:
It can therefore only be recommended to all sellers to also clearly offer used items for sale as "used item", "second-hand goods" or with a comparable, unambiguous wording.
GoldbergUllrich Attorneys at Law 2018
