Amazon merchant is responsible for automatic assignment of merchandise images of other merchants to its offer

Offers on amazon.de are arbitrarily illustrated from all deposited pictures by a program algorithm of Amazon, so that an offer can appear unpacked printer cartridges with the picture of original packed cartridges. It is reasonable to expect merchants to regularly check an offer that has been posted for a longer period of time to see whether infringing changes have been made. The Frankfurt am Main Higher Regional Court imposed an administrative fine of €500 on a trader for breach of this duty of inspection.<

Key Facts

Amazon uses a program algorithm that randomly selects stored images, which can lead to misleading offers.
The Higher Regional Court of Frankfurt am Main imposes a fine of €500 on a retailer for breach of inspection obligations.
The retailer used a picture of an original toner kit for her unpackaged offer, which was considered legally problematic.
Although the retailer claimed to be ignorant, it was proven that she had breached the duty to inspect.
The obligation to cease and desist could not be discharged by the assertion that the image selection was automatic.
Retailers must regularly check their offers in order to recognize and prevent infringing changes.
The court considered the fine imposed to be appropriate and sufficient to punish the breach of duty.

The parties in this legal dispute are competitors and offer printer toner and ink on amazon.de. In the past, the defendant had attached itself to an offer of the applicant for an original toner kit with corresponding pictorial representation when advertising its printer toner without original packaging. It was prohibited from doing so by a temporary injunction issued by the Hanau Regional Court.

The applicant now requests that a substantial fine be imposed on the respondent for breach of this obligation. The defendant invokes a breach of the cease-and-desist obligation through no fault of its own. She would submit an image of a toner without the original box with the correct ASIN for her product “original neutral unboxed” when posting her listing on Amazon.

Nevertheless, the image changes, so that at one time the image inserted by her can be seen, while at a later time an image of a toner with original cardboard can be seen. Merchants would deposit images with Amazon, which the system would select arbitrarily. She had only now learned this through a chat with Amazon.

The Regional Court had rejected the application for an order. The appeal was successful before the OLG. The defendant culpably violated the obligation to cease and desist. It had again attached itself to pictorial representations of the manufacturer’s original packaging with offers for unpackaged printer cartridges.

Their reference to the fact that the allocation of the image of originally packaged cartridges to their offer was made arbitrarily by Amazon’s program algorithm without their intervention does not exonerate them. In particular, it could not plead that it had only now learned of this algorithm. Rather, this function had already been the subject of the oral proceedings before the Regional Court. Accordingly, the defendant had to expect that this program algorithm of Amazon would select any one of all stored images, so that it was possible that its own offer of unpackaged printer cartridges would appear with an image of originally packaged cartridges.

In principle, a trader could be expected to regularly check an offer that had been posted for a longer period of time to see whether infringing changes had been made. The defendant had not complied with this duty of examination in a reproachable manner. If she had regularly checked her offer after posting, she would have noticed that next to her offer for unpacked goods not only the one she uploaded herself, but also the pictures of other dealers appeared. This should have prompted them to delete their offer – at least under this ASIN.

In the present case, a fine of €500 was appropriate, but also sufficient.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.