In its judgement of 04.11.2021, file no. 2 U 49/21, the Higher Regional Court of Stuttgart had to decide whether a seller is liable for an illegal product description of the operator of a sales platform.
Inadmissible health claims in the product description
The plaintiff is a competition association. The defendant sells, inter alia, a so-called "#INNERBEAUTY Collagen Youth Drink" on Amazon. The operator of the online sales platform describes the defendant's product in breach of the Health Claims Regulation (HCVO) as follows:
"Works from the inside out. The Collagen Youth Drink with 2500 mg collagen and other highly efficient active ingredients improves the appearance of the skin by...reducing wrinkles";
"Copper strengthens the connective tissue";
"Reduces wrinkles",
"INNERBEAUTY works against skin ageing".
The plaintiff, whose members are a large number of the defendant's competitors, sought an injunction from the defendant to cease and desist from making advertising statements on the grounds of inadmissible health-related claims. The defendant was of the opinion that the injunction was an abuse of rights and also disproportionate. This was because the internet trading platform had made the unlawful statements in the product description. These were therefore not attributable to it. Liability was therefore ruled out.
Is a seller liable for a product description even if it was written by the internet trading platform?
The court did not follow the defendant's argumentation. The court ruled that a trader who has an offer for sale published in his name on an internet trading platform, although he does not fully control its content because the platform operator is reserved the right to change the descriptive information, is liable as a perpetrator for the misleading content of his offer as a result of inaccurate information. The attribution of the risk of being liable for false statements by third parties in this constellation is not a completely unforeseeable legal consequence and is part of the risk of a seller who uses an internet trading platform. Anyone who takes advantage of an internet-based, generally accessible sales platform that provides extensive price transparency must accept the risk that the internet trading platform chooses an inadmissible product description or inadmissibly changes the seller's product description.
What does the decision mean for you?
The decision is of great practical importance for all those who trade on a larger scale via internet trading platforms, such as Amazon, Ebay and Yatego, etc. Many sellers do not know that internet trading platforms can change their product descriptions or use their own product descriptions. The risk of being liable for inadmissible product descriptions is borne by you as a seller. This applies even if you have had no influence whatsoever on the product description of the Internet trading platform.
If you discover a conspicuous description of your products by Internet trading platform, contact us immediately.
GoldbergUllrich Rechtsanwälte PartG mbB
Christopher Pillat, LL.M. (Intellectual Property Law)
Lawyer
