Amazon sellers and duplicate product pages

The issue and case law are from last year, but there still seem to be sellers at Amazon who don’t know it and fellow lawyers who provide flawed advice. In addition, I had not mentioned it last year, due to a lack of activity on my side at the time.

In 2016, the BGH (I ZR 110/15) ruled that sellers on Amazon are also liable for competition infringements committed by others on the same product page. This is problematic for Amazon sellers, especially those who offer many products, because Amazon does not inform about changes. Thus, if you, as a retailer, have attached yourself to a product, so that you offer the product – also – but e.g. at a different price, then a page must be constantly checked whether it contains non-revocable content or, for example, mandatory information is missing. The creation of doublets of the product pages is actually forbidden by Amazon and just such real doublets Amazon tries to prevent technically.

“It is not permitted to create a product detail page for a product that is already included in the Amazon.de catalog.”

In addition, the Higher Regional Court of Hamm ruled last year that the creation of a new product page can itself constitute an infringement of competition law.

So to avoid the problem of co-responsibility, it is probably not a good idea, simply a new article page to which no other attachment can be attached.

The reasoning of the OLG Hamm is supposedly simple. For customers, it is no longer recognizable on a doublette that there may be cheaper offers from other providers on Amazon Marketplace. This is particularly true if, for example, one had only received a link from third parties.

In its decision, the OLG Hamm commented as follows:

“By re-entering another article detail page for an already via an article detail page […] the defendant has inaccurate and therefore in accordance with Section 5 para. 1 sentence 1 and sentence 2(1) UWG (‘availability’) gives a misleading impression that it is the only supplier for that product. […] The users of the internet platform “amazon” – at least but a not inconsiderable part of these users – assume that “amazon” has only one item detail page for each product and accordingly all providers of this product via this article detail page can be found.

In that case, it could even be aggravating, under the circular conclusion of BGH I ZR 110/15, that the attachment to a doublette would also be anti-competitive.

In several respects, Amazon sellers should carefully consider their own activities and legal concerns. The mass creation of products, or attachments to third-party ASIN, by means of e-commerce software, poses a great risk due to this jurisprudence. Especially if your own business is based on dropshipping, for example, and the products, as well as descriptions and the like, come from asia.

This is particularly true since the decision of the OLG Hamm was not without criticism.

The reasoning of the OLG Hamm

Misleading is also relevant for business (competition law). It is capable of persemoising the viewer of the article detail page at issue to conclude a transaction with the defendant without searching the Internet platform Amazon for (possibly cheaper) providers.

can not really convince. So far, however, I am not aware of any OLG decisions to the contrary. This may be due to the fact that an infringement of that case-law could sometimes result in massive claims for damages by competitors.

On the other hand, as is so often the case, certain situations must be considered in detail, such as whether they are really the same product (and not, for example, a private label), whether there is really confusion among users as to whether the product is really the same. Equipment of a product and other features and thus the EAN of the manufacturer are the same and much more.

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.