The Regional Court of Bochum ruled in preliminary injunction proceedings that an online injunction proceedings that an online retailer must refer to existing manufacturer's existing manufacturer's warranties in the context of its offer.
What was it about?
The online retailer offered a new smartwatch in its eBay auction. smartwatch in his eBay auction. The manufacturer of this Smartwatch offered a one-year warranty on this smartwatch. The online trader did not refer to the warranty either in his eBay offer or during the ordering process. or during the ordering process of the existence or content of this warranty. warranty.
A competitor warned the online trader by means of a letter because of the lack of more detailed information regarding the warranty, in particular its content and all essential details, and demanded that the and demanded that the online trader submit a cease-and-desist declaration with a a cease-and-desist declaration. The online retailer refused to submit the declaration of discontinuance with declaration, arguing, among other things, that there was no duty to The online retailer refused to issue the penalty-proof cease-and-desist declaration, arguing, among other things, that there was no duty to inform with regard to the manufacturer's warranty.
At the end of August 2019, the competitor applied to the Regional Court of Bochum for an interim injunction, which the Bochum Regional Court issued in early September 2019 by way of an order. The online retailer filed an filed an objection. On 27 November 2019, the Bochum Regional Court confirmed the interim injunction by judgment. The judgement of the LG Bochum is not yet final.
How did the Regional Court of Bochum justify its decision?
The Regional Court of Bochum ruled that the competitor could assert its claim for injunction under §§ 8 para. 1, 3 para. 1, 3a, 12 UWG in conjunction with § 312d UWG. § 312d para. 1 sentence 1 BGB in conjunction with. Art. 246a § 1 para. 1 no. 9 EGBGB (Introductory Act to the German Civil Code) has.
It was undisputed that the online trader offered goods as part of a distance selling transaction, so that he had to inform the consumer pursuant to § 312d BGB in conjunction with Art. 246a BGB. Art. 246a BGB. According to Art. 246a § 1 para. 1 No. 9 EGBGB the trader must inform the consumer, among other things, about the existence and the conditions of guarantees. According to the Bochum Regional Court from the wording of Article 246a § 1 (1) sentence 1 of the Introductory Act to the the systematics of the statutory provisions on warranties and information obligations and, in particular, from an interpretation in conformity with the Directive that the trader the trader not only refers to his own guarantee, but also to an obligation guarantee, but also to an obligation of the manufacturer as guarantor manufacturer's obligation as guarantor.
According to the Bochum Regional Court, this obligation the Bochum Regional Court, this obligation also requires the trader to actively inquire (manufacturer's) guarantee for the goods offered. Such an enquiry is also reasonable for the reasonable for the company.
The breach of the duty to inform is, in the opinion of the LG Bochum, also intended to intended to regulate market conduct in the interest of market participants. Especially insurance offers relating to the goods, as is often the case on eBay, the customer can only make an informed the customer can only make an informed purchase decision if he is also informed about any decision only if he is also informed about any existing manufacturer's guarantees. is provided.
What do online traders have to pay attention to now?
As always with court decisions (especially those not yet final), these are only binding on the parties to the respective proceedings. However, market participants and other courts "orientate" themselves on the decisions of other courts. It could be that the opinion of the Bochum Regional Court will also prevail in other courts and become the "prevailing opinion in the case law. Then, at the latest, online traders should choose the the safest way and inform their customers about manufacturer's guarantees. Whether the decision of the LG Bochum is also applicable to the sale of used goods remains to be seen. Provided that the product is still covered by a "residual guarantee", this should be obvious.
Judgment LG Bochum of 27.11.2019, Ref. I-15 O 122/19
GoldbergUllrich Attorneys at Law 2019
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
