Search result on Amazon – trade mark infringement?

When a specific trade mark is entered into the search box on the online platform Amazon, the corresponding search result appears. However, alternative products from other manufacturers are also displayed. The Higher Regional Court (OLG) Frankfurt a.M. decided whether this constitutes trade mark infringement.

Proceedings were brought against the online platform Amazon and its search function when the designation "FATBOY" was entered.

The holder of the "FATBOY" trade mark, who is engaged in particular in the manufacture and distribution of bean bags, classified the display of competing products in the same results list as trade mark infringement.

He takes the view that the relevant public could be under a misconception as to the origin of the offered products.

Amazon, on the other hand, argues that there is no trade mark use. The average buyer of goods offered in online shops would know that their search functions produce results in which goods of different product categories and origins are displayed.

The court's decision on the Amazon search result

The Higher Regional Court (OLG) Frankfurt a.M. decided by means of Judgment of 11.02.2016 – Az. 6 U 6/15 that trade mark infringement exists and thus confirmed both the view of the trade mark holder and that of the Regional Court (LG) Frankfurt a.M., which had already ruled against Amazon in first instance.

The use of the sign impaired the origin function of the trade mark, as there was the possibility that the user of the sales platform would associate the products of a competitor with the product he was seeking.

The circumstances were compared with the real sales world. If someone asks a shop assistant in a department store for products of a trade mark, he would expect the assistant to show him those trade marked products and not their competing products – especially not unsolicited.

Conclusion

The Higher Regional Court (OLG) Frankfurt a.M. did not decide whether trade mark infringement also exists if the alternative offers do not appear as part of a uniform results compilation but are clearly separated from it. In any event, a large price difference between the products or the colour highlighting of the trade mark label is not sufficient.