In its judgment of november 4, 2021, Ref. 2 U 49/21, the Stuttgart Higher Regional Court had to decide whether a seller is liable for an unlawful product description provided by the operator of a sales platform.
Impermissible Health-Related Claims in the Product Description
The plaintiff is a competition association. The defendant, among other things, sells a so-called '#INNERBEAUTY Collagen Youth Drink' on Amazon. The operator of the online sales platform describes the defendant's product as follows, in violation of the Health Claims Regulation (HCR):
“Works from within. The Collagen Youth Drink with 2500 mg collagen and other highly effective active ingredients improves the appearance of the skin by…reducing wrinkles”;
“Copper strengthens connective tissue”;
“Reduces wrinkles”
“INNERBEAUTY combats skin aging”
The plaintiff, whose members are numerous competitors of the defendant, seeks an injunction against the defendant to cease the advertising claims due to impermissible health-related statements. The defendant argued that the preliminary injunction was an abuse of rights and disproportionate, as the online trading platform had made the unlawful statements in the product description, which were therefore not imputable to them, thus precluding liability.
Is a seller liable for a product description even if it was drafted by the online trading platform?
The court did not accept the defendant's arguments. The court ruled that a merchant who publishes a sales offer in their name on an online trading platform, even if they do not fully control its content design because the platform operator reserves the right to modify descriptive information, is liable as the perpetrator for the misleading content of their offer resulting from inaccurate information. The attribution of the risk of liability for false third-party information in this constellation is not an entirely unforeseeable legal consequence and is part of the risk assumed by a seller utilizing an online trading platform. Anyone who benefits from an internet-based, publicly accessible sales platform that provides extensive price transparency must accept the risk that the online trading platform may choose an impermissible product description or impermissibly alter the seller's product description.
What does this decision mean for you?
This decision is of significant practical importance for all who conduct extensive trade via online trading platforms such as Amazon, eBay, and Yatego, etc. Many sellers are unaware that online trading platforms can modify their product descriptions or use their own. As a seller, you bear the risk of liability for impermissible product descriptions. This applies even if you have had no influence whatsoever on the product description provided by the online trading platform.
Should you discover a conspicuous description of your products by an online trading platform, please contact us immediately.
GoldbergUllrich Attorneys at Law PartG mbB
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
