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The Federal Court of Justice currently has to decide whether the supplier of a product offered on the online trading platform Amazon is liable under competition law for customer evaluations of the product.
In the present case, a competition association has complained. The defendant distributes so-called “kinesiology tapes”. In the past, it has advertised these products as suitable for pain treatment, which is not medically proven. The defendant therefore issued a declaration of injunction to the Association on 4 November 2013.
The defendant also offers its products on the online trading platform Amazon. There, the EAN generates as usual an ASIN assigned to that product to ensure that when a particular product is called up, the offers of all suppliers of that product are displayed.
Buyers are known to be able to rate the products; however, Amazon assigns such an assessment to the product listed under the relevant ASIN without further examination. As a result, an item displays all customer reviews that have been submitted for that product, which may be offered by multiple sellers.
At the beginning of 2017, the defendant offered the said kinesiology tapes. However, this feature has now attracted customer reviews, including the notes “Pain-relieving tape!”, “This product is perfect for pain…”, “Quickly the pain subsides”, “Relieving the pain is noticeable”, “The pain is going on.” by gluing away” and “relieve pain”. The Competition Association then asked the defendant to pay a contractual penalty. However, Amazon refused to delete the customer reviews at the defendant’s request.
In the proceedings, the Association sought the injunction and payment of the contractual penalty and the warning costs. The defendant had adopted the customer reviews and should have worked towards their deletion. If that is not possible, it may not offer the products on Amazon.
The landgericht dismissed the action. There is no claim aim of Paragraph 8(8) of the 1, Section 3a UWG in conjunction with Section 11 para. 1 Sentence 1 No 11 HWG. The plaintiff’s appeal was unsuccessful. It is true that the health claims contained in the customer reviews are misleading. But they were not advertising. At the very least, such advertising would not be attributable to the defendant. Nor does the defendant’s liability arise from an infringement of the traffic obligations under competition law within the meaning of Paragraph 3(3) of the Treaty. 2 UWG.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
