Information rights in trade mark law: Federal Court of Justice sets clear limits on exhausted trade mark rights in online commerce

The right to information in trade mark law is a powerful tool for enforcing trade mark rights. The Federal Court of Justice (BGH) has clarified by judgment of 22 October 2025 (I ZR 220/24 – "LA BIOSTHETIQUE") that this right does not apply without limits where trade mark rights are exhausted. In particular in online commerce, the BGH imposes strict limitations on the information right where the trade mark infringement consists solely in a reputation-damaging presentation of genuine goods.

Background: Information right in trade mark law as an enforcement tool

The right to information in trade mark law is designed to enable trade mark proprietors to effectively pursue infringements. It serves to disclose the origin and distribution channels of goods infringing rights in order to prevent further violations. Particularly in online commerce, which is often organised on a cross-border basis, this right has considerable practical significance.

The information right is regulated by statute in § 19 MarkenG. Accordingly, the trade mark proprietor may require the infringer to provide, inter alia, information about suppliers and previous owners. However, this right is not unlimited but is subject to the principle of proportionality.

The facts: Online distribution of genuine goods

In the case decided, an online retailer domiciled in Denmark offered a total of 71 cosmetic products of a well-known premium brand via a German-language .de website. The products were genuine goods and had been put into circulation for the first time in the European Economic Area with the consent of the trade mark proprietor. The trade mark rights were thus exhausted in principle.

However, the concrete presentation of the products was problematic: permanent discounts with prominently displayed percentage figures, in some cases inflated recommended retail prices crossed out, missing product images, no usage information and numerous items marked as "not in stock". The trade mark proprietor saw this as causing significant damage to the reputation of its trade mark.

Trade mark infringement despite exhaustion: Reputation-damaging product presentation

The Federal Court of Justice (BGH) confirmed that a trade mark infringement can exist even where the trade mark rights in the goods are exhausted. According to Art. 15 (2) of the Trade Mark Regulation (EU), the trade mark proprietor may oppose further commercialisation if legitimate grounds exist.

Such a legitimate ground can in particular exist if the manner of product presentation is capable of causing lasting damage to the reputation of a trade mark. The BGH made clear that this can in particular be the case with trade marks of a luxury or prestige character. In this respect, the decision significantly strengthens the rights of trade mark proprietors.

The information right in trade mark law pursuant to § 19 MarkenG

In principle, the information right in trade mark law also covers information about suppliers and previous owners of the goods. The aim is to close the source of the infringement as completely as possible. In this regard, it is immaterial whether the suppliers themselves were involved in the trade mark infringement.

However, § 19 (4) MarkenG explicitly provides that the information right is excluded if its enforcement would be disproportionate in the individual case. The decision of the Federal Court of Justice (BGH) addresses precisely this point.

Federal Court of Justice (BGH): Proportionality limits the information right

The BGH decided that the information right in trade mark law does not extend in the concrete case to requiring the online retailer to disclose the names and addresses of its suppliers. It was decisive that the trade mark infringement did not lie in the goods themselves but exclusively in the manner of their presentation by the retailer.

The suppliers had neither influence over the design of the online offering nor were they involved in the reputation-damaging presentation. Disclosure of the supply chain would therefore have made no contribution to preventing further trade mark infringements.

No supplier information where damage to reputation is the sole issue

The Federal Court of Justice (BGH) explicitly made clear that the information right in trade mark law must not be misused to secure selective distribution systems or to identify distribution partners acting in breach of contract. Such use of the information right would jeopardise the freedom of movement of goods guaranteed by European law and lead to impermissible market partitioning.

Where the trade mark infringement lies solely in the distribution methods of an individual retailer, it is generally sufficient to take action against that retailer alone. Disclosure of the entire supply chain is disproportionate in such cases.

Significance of the decision for trade mark proprietors and online retailers

For trade mark proprietors, the judgment means that the information right remains a powerful tool but must be deployed in a targeted manner. It is not suitable for conducting general distribution controls or uncovering breaches of contract within a selective system.

Online retailers, for their part, must ensure even when distributing genuine goods that presentation, pricing and information content are consistent with trade mark requirements. Otherwise, they face injunction claims – even where trade mark rights are exhausted.

Conclusion: Clear guidelines for the information right in trade mark law

The Federal Court of Justice (BGH) has clarified the scope of the information right in trade mark law through its decision. Trade mark proprietors can effectively defend themselves against presentations that damage reputation but must accept that the information right ends where it no longer serves to combat trade mark infringements. The principle of proportionality remains the decisive corrective.

Practical tips from a legal perspective

• Trade mark proprietors should clearly define what concrete objective is being pursued before asserting an information right.
• Online retailers should ensure high-quality and transparent presentation when dealing with well-known brands.
• Selective distribution systems cannot be enforced solely through the information right in trade mark law.

Our firm AVANTCORE has comprehensive expertise in trade mark and designations law and advises companies, trade mark proprietors and online retailers comprehensively on information rights in trade mark law, on the exhaustion of trade mark rights and on legally sound online distribution models.