Background to the decision is a special feature of the Amazon Marketplace. In contrast to many other platforms, the Amazon Marketplace does not provide a separate offer presentation per offered product, but there shall basically exist only one offer presentation for all identical products offered by different sellers on the Marketplace. For this purpose, a so-called “ASIN” (Amazon Standard Identification Number) will be assigned once per product and each seller of this product will be listed in the so-called “buy-box” of this offer presentation (so-called “attaching” to an offer). The offer can be modified by the listed sellers or by Amazon itself, also automated by the Amazon algorithm.
In a series of decisions, the BGH (Federal Court of Justice) has ruled that the sellers listed in the buy-box are generally responsible for the content of the offer, even if it has been modified by third parties without their knowledge (e.g. BGH GRUR 2016, 936 – Angebotsmanipulation bei Amazon [for trademark law] and BGH GRUR 2016, 961 – Herstellerpreisempfehlung bei Amazon [for competition law]). The BGH has set the limit of this liability for the attribution of incorrect customer reviews (BGH GRUR 2020, 543 – Kundenbewertungen auf Amazon). Those should not be attributable to the sellers listed in the buy-box, as they did not initiate those and customer reviews were not in the responsibility of the seller from the perspective of the users of the platform and also does not create the impression that the seller identified with the reviews.
In the facts underlying the decision of the OLG Frankfurt a.M., the issue was whether the defendant had violated a preliminary injunction of the LG Hanau (District Court of Hanau). With the preliminary injunction, the LG Hanau had prohibited the defendant from “attaching” to an Amazon Marketplace offer for printer toners containing a product picture of the toner in the original packaging provided by the manufacturer, if the defendant did not sell the printer toners in the original packaging (but in a neutral outer packaging).
The defendant then created a new product offer with its own ASIN for printer toners in neutral outer packaging and added its own accurate product image. Subsequently, the Amazon algorithm changed the product image to that of the printer toner in original packaging without the defendant’s intervention and knowledge. The applicant thus applied for an penalty against the defendant for breach of the preliminary injunction. The LG Hanau dismissed the request, because the infringement, which was “committed” by the Amazon algorithm, was not attributable to the defendant.
The OLG Frankfurt a.M. overturned this decision and imposed a penalty fine, albeit a small one. The court ruled that the defendant was aware of the possibility of an automated modification of offers by the Amazon algorithm. Moreover, he had been warned about the use of product images by the previous injunction. It would be tolerable for him to regularly check “his” offer to evaluate whether infringing changes had been made. The OLG Frankfurt a.M. did not accept the defendant’s objection that after creating his own offer with his own ASIN (printer toner in neutral outer packaging) he did not have to expect that the Amazon algorithm would change the (correct) product image to one of a printer toner in original packaging. The court obviously assumes that a seller on the Amazon Marketplace must expect any change to his offer at any time.
In its decision, the court did not deal with the question raised by the BGH in the decision Kun-denbewertungen auf Amazon as to whether the product images are attributed to a seller from the perspective of the users of the platform. In the meantime, a not inconsiderable number of users of the Amazon Marketplace are probably familiar with its structure and the allocation of different sellers to an offer. This question will become relevant if a product picture uploaded by a customer (e.g. in the context of a review) contains infringing content. Such customer photos are also sometimes automatically added to the product images by Amazon.
Although the OLG Frankfurt only imposed a small fine, sellers should not rely on this. If a seller wants to avoid liability, he should regularly check and amend all his offers on Amazon Marketplace or, if necessary, “delist” from an offer as a seller. How this is to be achieved in practice with often several thousand offers per seller and the multitude of possible infringements of competition law, copyright law and trademark law is another question.
