Warning trap
Amazon.
Warning trap
Amazon.
from
What warning traps threaten online retailers on Amazon? What do Amazon retailers need to watch out for? Valuable tips for marketplace retailers on Amazon.
Trade on Amazon
Amazon not only sells itself, but is now one of the largest trading platforms on the internet and a player in e-commerce alongside eBay. Selling on Amazon is economically interesting for retailers due to Amazon’s reach and popularity. However, there are a number of problems for retailers when selling on Amazon, as their scope for creativity on Amazon is severely limited and Amazon retailers can be threatened with a cease and desist letter .
Here are some of the pitfalls on Amazon that can lead to cease and desist letters for retailers:
Central article description
Amazon stores item descriptions centrally and assigns them an ASIN as a unique identifier. Every retailer who wants to sell a certain product and which already exists as an item on Amazon can “attach” themselves to this product, i.e. sell it under the same ASIN. For this reason, there are often several sellers for the same item. This may be convenient for the customer and Amazon, but there are risks for the retailer.
On the one hand, the item description may subsequently change, so that it no longer corresponds to the product offered, which may be misleading.
On the other hand, a problem arises if, for example, a no-name product supposedly offered on Amazon is actually a branded product. If a retailer then offers a product other than the branded product – e.g. the identical no-name product – under the same ASIN, this constitutes a trademark infringement. We have already successfully enforced corresponding claims for trademark owners on several occasions (e.g. LG Stuttgart, decision of 12.09.2013 – Ref. 17 O 1263/13; decision of 15.11.2013 – Ref. 17 O 1640/13; LG Stuttgart, decision of 15.01.2014 – Ref. 17 O 43/14; LG Stuttgart, judgment of 14.10.2014 – Ref. 17 O 800/14). We have also represented retailers on several occasions who have been held liable for such trademark infringements because they had not even realized that the products on offer were branded products.
Retailers should therefore pay close attention to the item description and ASIN under which they offer their products and, if in doubt, create their own item descriptions on Amazon.
Recommendation function
Amazon has a recommendation function on its website that the retailer can neither switch on nor off. Such recommendation emails are legally problematic. The Federal Court of Justice (Judgment of 12.09.2013 – Ref. I ZR 208/12 ) classifies such recommendation emails without the recipient’s consent as unsolicited advertising, i.e. spam. The function on Amazon has now also been classified as anti-competitive by the Higher Regional Court of Hamm (case no. I-4 U 154/14). The liability of a retailer for Amazon’s recommendation function was also affirmed, as the retailer had ultimately chosen the sales platform. The lower court at Arnsberg Regional Court ( Judgment of 30.10.2014, Ref. I-8 O 121/14 ) saw things differently.
RRP Price details
The central item description also leads to problems with RRP prices. Such non-binding price information from the manufacturer must be accurate, otherwise it is misleading under competition law. As the manufacturer’s RRP information can change over time, it is possible that even in the case of offers where the RRP price was originally correct, this information becomes outdated and is then no longer correct, which is anti-competitive. Amazon sometimes includes such RRP prices in the item descriptions. However, if the RRP price set by Amazon is no longer correct and a retailer still offers its goods under this item description, it is liable for this even if Amazon has set the information (OLG Cologne, decision of 23.09.2014 – Ref. 6 U 115/14; OLG Cologne, judgment of 28.05.2014 – Ref. 6 U 178/13 ).
Product photos
If a retailer uploads their own product photos, copyright infringements can be considered if these photos are displayed with offers from other retailers, which happens regularly on Amazon. Although Amazon’s GTCs stipulate that corresponding laws are granted to uploaded images, the question is whether and to what extent this granting of rights is actually effective. The Regional Court of Cologne does not consider such use by third party retailers to be a copyright infringement (judgment of 13.02.2014 – Ref. 14 O 184/13). The LG Stuttgart (LG Stuttgart, judgment of 25.02.2014 – Ref. 17 S 4/13) and the LG Nürnberg-Fürth(judgment of 04.02.2011 – 4 HK O 9301/10) take a different view.
If the images were originally uploaded without the author’s consent, this always constitutes a copyright infringement (LG Köln, reference decision of 16.11.2012 – Ref. 28 O 814/11).
Since retailers are usually unable to assess who uploaded the photos and with what authorization, the use of third-party photos should generally be avoided if the authorship is unclear.
Pre-contractual information obligations
Online retailers must fulfill various information obligations towards consumers, such as providing information about the right of withdrawal. Many retailers also use GTCs.
Although retailers can store this information on Amazon, this information is not necessarily displayed to the buyer as part of his order, or in the case of GTCs, there is no effective inclusion, as the reference used by Amazon alone is not sufficient.
For further information, imprint, GTC and right of withdrawal please click on the seller’s name.
is probably not sufficient for this. In addition, the final order overview only refers to Amazon’s GTC.
It is therefore still impossible for retailers to comply with their legal information obligations, as Amazon does not allow legally compliant embedding. However, as this affects all retailers on Amazon equally, legal disputes in this regard have so far been limited.
Conclusion
Amazon is both an opportunity and a risk for retailers. With a little caution, some warning risks can be avoided, but unfortunately not all.
Trading on Amazon therefore remains associated with risks as long as Amazon does not make improvements here.
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