Liability for Changes to Amazon Listings

Are sellers liable for changes to Amazon listings on Amazon Marketplace if third-party subsequent changes infringe trademark rights? The Higher Regional Court (OLG) Frankfurt a. Main says yes, at least if they do not regularly review the listing for such changes.

A seller offered satellite antenna technology and accessories under the brand "Premium X" on Amazon Marketplace. A competitor subsequently attached itself to the seller's listings under the same ASIN and added its own trademark to the listings, thus modifying the listing.

The seller in turn removed the competitor's trademark from its listings. A test purchase from the competitor then revealed that the competitor did not deliver goods bearing the seller's brand – as last specified in the listing – but rather goods bearing its own brand.

The seller saw this as a trademark infringement, among other things, and asserted injunctive relief claims against the competitor in court. The Regional Court (LG Frankfurt a. M., judgment of 23.10.2018, Az. 2 03 O 387/17) confirmed in the first instance that the competitor had infringed the seller's trademark rights and granted the seller the trademark injunctive relief claim.

Judgment of the OLG onliability for changes to Amazon listings

The Higher Regional Court (OLG) Frankfurt a. M. (judgment of 05.12.2019, Az. 6 U 182/18) agreed with the legal position of the court of first instance and affirmed a trademark infringement.

A tortfeasor (Störer) can be held liable if it contributes in any way, knowingly and with adequate causal connection, to the violation of the protected legal interest. Since liability as a tortfeasor must not be extended excessively to third parties who have not themselves committed the unlawful infringement, the liability of the tortfeasor presupposes a breach of inspection duties. The scope of these duties is determined by whether and to what extent it is reasonable to expect the tortfeasor to conduct an inspection under the circumstances.

The court found that the defendant was subject to a monitoring and inspection duty regarding changes made to the product descriptions on Amazon Marketplace. It was reasonable to expect the defendant to regularly review a listing posted on Amazon Marketplace over an extended period to determine whether infringing changes had been made. Already the Federal Court of Justice (BGH) decided that inspection of a listing only after 5 weeks is in any event too late.

In the present case, the defendant failed to fulfil its monitoring and inspection duty; rather, even after becoming aware that the listing bore exclusively the claimant's trademark, it did not dissociate itself from this listing.

Conclusion

Sellers must regularly review their listings on Amazon Marketplace for changes made by third parties. If they fail to discharge this monitoring and inspection duty, they are also liable for trademark infringements caused by other sellers who are attached to the listing.