Wish is liable

for

Counterfeits.

22. September 2026

of

Clemens Pfitzer

Is an online marketplace liable for counterfeit brand-name goods only once it becomes aware of them, or is it liable in the same way as a retailer who sells them directly? The Hamburg Higher Regional Court has ruled that the Wish platform is liable for counterfeit GHD hair straighteners. This opens up new avenues for brand owners to take action against platform operators themselves.

Hair straighteners for 35 euros

The owner of the GHD trademark manufactures hair straighteners, curling irons, and hair dryers. Its hair straighteners and curling irons cost between 189 and 299 euros. In 2019, he came across numerous listings for his trademark on the platform wish.com, which he classified as counterfeits. A straightener that originally costs 262 euros was being offered there for 35 euros.

The offers came from sellers operating under pseudonyms. Some pseudonyms consisted solely of a random sequence of letters and numbers. There was no way to contact the sellers directly. Between October 1, 2019, and November 2021, the trademark owner reported 142 infringements through the platform’s reporting system. The owner conducted six test purchases and issued multiple cease and desist letters to Wish.

Behind the wish.com platform are two companies: a San Francisco-based company and its Dutch subsidiary, ContextLogic B.V. The subsidiary handles the registration of European customers and payments.

From Facilitator to Perpetrator

In its ruling of May 27, 2025, the Hamburg Regional Court found Wish liable only as a facilitator. A facilitator is liable if they contribute to a third party’s infringement of rights and thereby violate reasonable duties of scrutiny. The Regional Court granted an injunction and ordered the disclosure of the merchants’ names and addresses. It dismissed the requests for further information, damages, and relief under competition law.

The trademark owner filed an appeal. No one appeared on behalf of Wish at the oral hearing, so the Higher Regional Court issued a default judgment on May 8, 2026. Wish filed an objection and presented its case. The court reviewed the platform’s objections and upheld the default judgment. The decision is thus based not solely on the failure to appear, but on a review of the merits of the case.

The very fact that the appeal was even admissible is noteworthy. The Regional Court had granted the injunction in exactly the same terms. The Higher Regional Court nevertheless found that the trademark owner had suffered harm. In the case of a third-party infringer, enforcement depends on the infringement of due diligence obligations. If another merchant were to offer counterfeit goods in the future, the platform could argue that its due diligence obligations had never been verified for that merchant.

Hamburg Higher Regional Court Rules Wish Liable

In its August 27, 2026, ruling—Case No. 5 U 58/25 —Wish was found liable as the perpetrator of the trademark infringement. The platform must cease offering GHD merchandise in Germany that has not been exhausted. Merchandise is considered unexhausted if it has not been placed on the market in the European Economic Area with the trademark owner’s consent. Wish must also provide information regarding sales volumes, revenue, and the commissions paid by merchants. The court further ruled that the platform must compensate for damages incurred since January 1, 2018.

In addition, the court granted injunctive relief under competition law. In the court’s view, the offers lacked proper cancellation instructions as well as the merchants’ names, addresses, and email addresses.

When does a marketplace adopt third-party offers as its own?

The starting point is a principle that the court also emphasized. A platform that merely provides a trading platform does not adopt its users’ offers as its own. Caution is warranted when assuming that such adoption has occurred. Nor is it sufficient that a platform provides the technical infrastructure and is paid for doing so.

In the case of Louboutin v. Amazon, the ECJ established the conditions for liability (ECJ judgment of Dec. 22, 2022 – Case Nos. C-148/21 and C-184/21). According to the ruling, an operator is deemed to be using a third-party trademark itself if the trademark appears as part of its own commercial communication. This is particularly the case if users could believe that the operator is selling the goods in its own name and on its own account. The Higher Regional Court interprets this “in particular” as an example, not as a limitation. It is sufficient that the operator outwardly and recognizably assumes responsibility for third-party offers.

The court identified this responsibility based on a number of circumstances. The listings were presented in a uniform manner, in some cases with identical text and product images. The reference to the seller was small and inconspicuous. Order confirmations and payment information came from Wish or ContextLogic B.V., and the order status did not name a retailer. The button to contact the seller led to a chatbot featuring the Wish logo. Shipping is handled by a group company, and returns are sent to Wish’s warehouses in Germany.

Added to this were the terms and conditions for merchants. Wish reserves the right to set the final prices itself and to retain any additional proceeds. The platform is permitted to sell unclaimed returns at its own expense. The court also considered the internal search function to be evidence. According to the trademark owner’s undisputed submission, anyone entering “ghd” would not find a single original product. The Higher Regional Court of Cologne had previously addressed the role of search algorithms in relation to search results on Amazon.

Why doesn’t the liability exemption apply?

Under the E-Commerce Directive and, today, under the Digital Services Act, platforms enjoy a liability exemption. However, this requires them to play a neutral role—that is, to engage in purely technical and passive conduct. In the court’s view, Wish played an active role. The circumstances mentioned and the platform’s share of sales revenue support this conclusion.

Did the platform know about the counterfeits?

The court also found that the platform was aware of the situation. Wish offers merchants the option to have “authentic” brand-name products verified. This implies an awareness that unverified listings are very likely not originals. Even the price of 35 euros suggests the goods are not genuine.

The court found that negligence was sufficient grounds for awarding damages. Anyone who adopts third-party offers as their own must proactively verify whether the goods in question are subject to exhaustion. It is not sufficient to merely respond to infringement reports. Brand partner programs and the suspension of retailers do not preclude liability.

What does this mean for brand owners?

The ruling goes beyond the Louboutin case. In that case, Amazon sold its own merchandise alongside third-party offerings and provided storage and shipping services. Wish had argued that its own platform lacked precisely those elements. The Higher Regional Court left open the question of whether Wish itself sold under a third party’s name and based its finding of liability on the overall picture.

This provides leverage for trademark owners seeking to combat product and trademark piracy. If the sellers are operating anonymously from abroad, the platform may be the only tangible party against whom a claim can be brought. If the platform is held liable as the perpetrator, it may be required not only to cease and desist but also to provide information and pay damages.

The judgment is not final. The court granted leave to appeal to the Federal Court of Justice regarding the trademark claims, but not regarding the competition law claims. At the time this article was written, it was not known whether an appeal had been filed.

Here’s how to proceed as a trademark owner

• Document your platform presence.
  Save not only the product listing but also search results, order confirmations, payment information, and customer communications. It was precisely these circumstances that established the seller’s liability.
• Conduct test purchases.
  Only a test purchase reveals who is actually processing payments, shipping the items, and handling communications.
• Keep a complete record of reports.
  Document every infringement report with the date and the platform’s response.
• Examine potential defendants.
  Determine whether, in addition to the merchants, the platform itself can be held liable for providing information and paying damages. An assessment of the trademark infringement should take the platform’s business model into account.

Conclusion

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