Liability for infringement of rights by an affiliate of an affiliate program

The review of other websites whose operators independently set a link to one's own offering and thereby infringe third parties' rights is fundamentally unreasonable. That economically justified and effectively functioning control mechanisms are available within the scope of an affiliate program must be proven by the party asserting an infringement of rights.

The respondent (Ag.) operates an internet offering for the mediation of travel services under its domain. It advertises this, inter alia, through a so-called affiliate program, through which registered partners (affiliates) are provided with advertising material for the promotion of the Ag.'s website. The partners receive a percentage commission on all mediated sales. The applicant (Ast.) is a direct competitor of the Ag. and proprietor of the word mark "Travel 24".

One of the Ag.'s partners uses their advertising materials in the form of advertising banners and text links on their internet offering accessible under "www.(…)travel24.net", although they had originally registered with the Ag. under a completely different domain. This circumstance is not known to the Ag.

The question to be decided was whether the Ag. could be held liable for the fact that the affiliate displayed their advertising materials under a domain that infringed rights or trademark rights.

The court's decision

In the opinion of the court (Regional Court (LG) Hamburg, judgment of 03.08.2005 – 315 O 296/05), the Ast. has no claim against the Ag. for prohibition in relation to the operation of the affiliate program from § 14 II No. 2, V MarkenG, despite the existing likelihood of confusion between "travel24" and "(…)travel24". Liability as a disruptor namely requires – in addition to the setting of a causal contribution to the infringement of rights – the existence of reasonable control possibilities in order to prevent the trademark infringement. As a matter of principle, it is unreasonable to review external pages that link to one's own offering for infringements of rights.

Exceptions could only exist if there were technically realisable and economically reasonable control possibilities to detect and prevent such infringements of rights. However, showing such possibilities – due to the lack of recognisability of such control mechanisms in the present case – is generally incumbent on the party asserting an infringement of rights.

Conclusion

It will indeed be unreasonable for the operator of an affiliate program to review all of its affiliates or their domains to determine whether third-party rights are being infringed. This must apply in particular when the number of partners is large. In the present case, there were approximately 15,000 advertising partners.

The judgment would moreover probably not have had a different content if the infringer had registered from the outset with the trademark-infringing domain "(…)travel24.net" with the program operator, since even in that case the unreasonableness of a review would be apparent.