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.<
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.