The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for claims under the Unfair Competition Act, has ruled that the provider of a product offered on the online trading platform Amazon is generally not liable under competition law for reviews of the product by customers.
The plaintiff is a registered competition association. The defendant sells kinesiology tapes. In the past it has advertised these products products with the claim that they are suitable for the treatment of pain, which, however, is not medically verifiable. The defendant therefore therefore issued a cease-and-desist declaration to the plaintiff on 4 November 2013. declaration to cease and desist.
The defendant also offers its products on the online trading online trading platform Amazon. There, an ASIN is assigned to each product via the EAN (European Article Number), an ASIN (Amazon Standard Identification Number) is generated for each product. (Amazon Standard Identification Number) is generated for each product, which is intended to ensure that that when a certain product is called up, the offers of all the suppliers of this product are are displayed. Buyers can rate the products on Amazon. rate the products. Amazon assigns such a rating to the product listed under the corresponding product listed under the corresponding ASIN. The result is that all customer reviews all customer reviews are displayed for an item that have been submitted for this product - which may be offered by several sellers - are displayed.
On 17 January 2017, the defendant offered on Amazon kinesiology tapes on Amazon. Customer reviews were available under this offer, which contained, inter alia, the references "pain-relieving tape!", "This product is perfect for pain...", "The pain subsides quickly", "Relief of the pain is noticeable", "The pain goes away the pain goes away" and "Relieve the pain". The plaintiff demanded payment of a contractual penalty from the defendant. The Amazon refused to delete the customer reviews at the defendant's request.
The plaintiff seeks injunctive relief and payment of the contractual penalty and the warning costs. The defendant had adopted the customer reviews as its own and the customer reviews as its own and should have worked towards their deletion. If this was not it was not allowed to offer the products on Amazon.
Process history so far:
The Regional Court dismissed the action. There was no claim based on § 8 para. 1, § 3a UWG in conjunction with § 11 para. 1 sentence 1 no. 11 HWG. The plaintiff's appeal was unsuccessful. It was true that the health-related information contained in the customer reviews was misleading. However, they did not constitute advertising. At least such advertising could not be attributed to the defendant.
Decision of the Federal Supreme Court:
The Federal Supreme Court dismissed the plaintiff's appeal. dismissed. The Court of Appeal was right to hold that the defendant is not liable under competition law for customer reviews of the products it is not liable under competition law.
The plaintiff's claim for injunctive relief does not result from the provision of § 11 para. 1 sentence 1 no. 11 and sentence 2 HWG, which prohibits advertising for medical products with misleading statements by third parties. The customer reviews are misleading statements by third parties, because the claimed claimed pain relief through kinesiology tapes is not medically verifiable. verifiable. However, the defendant did not advertise with the customer reviews. advertised. According to the findings of the Court of Appeal, which were free of legal error Court of Appeal, the defendant neither actively advertised with the reviews nor did it or caused them to be made, nor did it adopt the customer reviews as its own, by assuming responsibility for the content. The customer reviews are marked as such, can be found on Amazon separately from the defendant's offer and are not attributed by the users to the sphere of the defendant. and are not attributed by the users to the sphere of the defendant as seller.
The defendant was also under no legal obligation to prevent the customer reviews from being misleading pursuant to § 5 para. 1 sentence 1 and 2 case 2 no. 1 UWG. Its offer on Amazon does not establish a guarantor position. Of crucial importance here is that customer rating systems on online marketplaces are socially desirable and enjoy constitutional protection. The interest of consumers to comment on products and to inform themselves or exchange information about the characteristics, advantages and disadvantages of a product from various sources, which also include reviews of other customers, before making a purchase, is protected by the fundamental right of freedom of opinion and information of Article 5 (1) sentence 1 GG. There is no need here to weigh this against the legal interest of public health, which as a community good of high rank could justify an encroachment on this fundamental right, because there are no indications of a health risk in the offer of kinesiology tapes.
Judgment of the Federal Supreme Court of 20 February 2020 - I ZR 193/18
LG Essen - Judgment of 30 August 2017 - 42 O 20/17
OLG Hamm - Judgment of 11 September 2018 - 4 U 134/17