Liability for manipulated Amazon listings?

Amazon Marketplace sellers are liable as interferers for trademark infringements in the context of a product description subsequently altered by third parties. They are therefore subject to a monitoring and examination duty.

To offer goods via Amazon Marketplace, the first seller enters the product information into a mask provided by Amazon. This typically contains the product name, the manufacturer and also the brand. From this, a digital catalogue page is then created, which is accessible to prospective purchasers along with a photo of the product.

Other sellers of this product can list the product on Amazon Marketplace at a later date. They are eventually listed on the original catalogue page of the first seller. These other sellers can subsequently change the original product description without restriction and without the creator's consent.

A seller was undone by precisely this function. His original product description was – so his argument went – subsequently altered by third parties and contained the brand "TRIFOO". Since the trademark rights holder had not consented to this use, she demanded from the seller, inter alia, an injunction. Successfully.

Court decision – interferer liability of the Amazon seller

By judgment of 03.03.2016, the BGH (AZ: I ZR 140/14) confirmed the decisions of the lower courts.

The seller was liable for the trademark infringement at least as an interferer. He had "used" an identical sign at least insofar as the product offered by him was designated with the sign "TRIFOO".

Sellers who offer products for sale on an internet sales platform are subject to a monitoring and examination duty with regard to possible changes to the product description of their listings that are made independently by third parties, if the platform operator permits such changes to listings.

A corresponding examination duty exists even if there has been no prior notice of a legal violation by a specific listing. Sellers are not service providers within the meaning of the TMG.

Conclusion

Amazon Marketplace sellers must regularly check their permanently listed offerings to determine whether infringing alterations have been made. If they fail to comply with this duty, they can be held liable for an injunction.