The Bochum Regional Court ruled in preliminary injunction proceedings that an online retailer must inform customers about existing manufacturer warranties as part of its offer.
What was the issue?
The online retailer offered a new smartwatch in its eBay auction. The manufacturer of this smartwatch provided a one-year warranty. However, the online retailer failed to mention the existence or content of this warranty either in its eBay listing or during the ordering process.
A competitor sent a cease and desist letter to the online retailer, alleging insufficient information regarding the manufacturer's warranty, specifically its content and all essential details, and demanded the submission of a penalty-backed cease and desist declaration. The online retailer refused to issue the declaration, arguing, inter alia, that no obligation to provide information about manufacturer warranties existed.
At the end of august 2019, the competitor applied to the Bochum Regional Court for a preliminary injunction, which the court granted by order in early September 2019. The online retailer filed an objection. On november 27, 2019, the Bochum Regional Court upheld the preliminary injunction by judgment. The judgment of the Bochum Regional Court is not yet legally binding.
How did the Bochum Regional Court justify its decision?
The Bochum Regional Court ruled that the competitor had credibly asserted its claim for injunctive relief pursuant to Sections 8 (1), 3 (1), 3a, 12 of the German Act Against Unfair Competition (UWG) in conjunction with Section 312d (1) sentence 1 of the German Civil Code (BGB) and Article 246a Section 1 (1) No. 9 of the Introductory Act to the German Civil Code (EGBGB).
It was undisputed that the online retailer offered goods via distance selling, thereby incurring an obligation to inform consumers in accordance with Section 312d BGB in conjunction with Article 246a BGB. Pursuant to Article 246a Section 1 (1) No. 9 EGBGB, the entrepreneur must inform the consumer, among other things, about the existence and conditions of warranties. In the view of the Bochum Regional Court, the wording of Article 246a Section 1 (1) sentence 1 EGBGB, the systematic structure of legal provisions on warranties and information duties in online commerce, and especially a directive-compliant interpretation, imply that the entrepreneur must refer not only to their own warranty but also to any obligation undertaken by the manufacturer as guarantor, in addition to the statutory warranty.
According to the Bochum Regional Court, this obligation also requires the entrepreneur to actively investigate the existence of a (manufacturer's) warranty for the goods offered. Such an investigation is considered reasonable for businesses.
In the view of the Bochum Regional Court, the breach of the information duty is also intended to regulate market conduct in the interest of market participants. Particularly when, as frequently observed on platforms like eBay, insurance offers related to the goods are presented, a customer can only make an informed purchasing decision if they are also apprised of any existing manufacturer warranties.
What should online retailers pay attention to now?
As with all court decisions (especially those not yet legally binding), they are only binding on the parties to the specific proceedings. However, market participants and other courts often consider decisions from other courts. It is conceivable that the Bochum Regional Court's view may gain traction in other courts and become the "prevailing opinion" in legal practice. Should this occur, online retailers should, at the very least, opt for the safest approach and inform their customers about manufacturer warranties. Whether the Bochum Regional Court's decision also applies to the sale of used goods remains to be seen. However, if a "remaining warranty" still applies to the product in question, this would likely be the case.
Judgment of the Bochum Regional Court of november 27, 2019, Ref. I-15 O 122/19
GoldbergUllrich Attorneys at Law 2019
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
