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Online sale platform: legal relationships under German Law

At first glance, sales platforms such as eBay, Amazon, Etsy, Yatego or Dawanda appear to be the most used platforms in Germany. However, this is not really the case: there are nowadays numerous sales opportunities for online retailers. Our expertise encompasses well over a hundred platforms and we are also constantly involved in new legal frameworks for new internet service providers.

Internet retailers, who sell their goods on one of the platforms, submit to the respective GTC and other contractual components on the respective platform. Therefore, it is advisable to document the recognizable GTCs and the first product settings from the initial contact to the sales platform.

This is the legal framework that an online retailer should not underestimate, in particular the mutual rights and duties with the buyers and the online platform. 

This triangular sort of collaboration can create difficult matters of intellectual property, competition law, general civil law and many other legal areas. For instance, the Federal Court of Justice (BGH) issued an unpleasant decision for an Amazon´s watch-dealer. This was offering branded watches on Amazon. Amazon has imposed the UVP (the Umweltverträglichketisprüfung in German). For the Federal Court of Justice, the watch-dealer is liable for the correctness of the UVP, which he has not designated. For this reason, the sales announces on Amazon are attributed to the Amazon retailer responsibility. He should have checked the announces on a regular basis; he unfortunately did not do that. This is also stated on the Amazon´s Terms and Conditions. We present this case only for example purposes.

Internet Trading on Amazon

In addition to eBay, Amazon is another very professional online trading platform. On a contractual point of view, Amazon is characterized by fewer freedoms. However, this gives new and already existing traders also positive guideline as long as / as far as the trader is aware of the legal framework and is closely observed by the same legal frameworks.

The following topics are also really important for the Amazon platform:

  • A design infringement / trademark infringement / patent infringement, claim leads to the blocking of the offer (by Amazon) and in the case of multiple infringements the account can be threatened of suspension or cancellation, in the worst case.
  • A product can be also monopolized by Amazon through a design/trademark/patent registration.
  • Protection of the ASIN, EAN and GTIN.
  • New usage conditions of Amazon, changed GTC for the Amazon Marketplace
  • Blocking of the offers and imposition of the release of blocked offers.
  • Account suspension and account release.
  • Warning for infringement of competition law and subsequent procedures.
  • Involving third-parties offers may constitute a competitive impediment or a trademark infringement.
  • Account-hack and the short-term setting of numerous fake articles.

Internet trading on eBay

The sales and trading platform eBay has left its initial legal uncertainties insofar as many legal questions have now been clarified by the legal Court and the legal framework has been strengthened. This concerns for instance, questions regarding the liability of eBay itself, rights and duties of buyer and sellers, delimitation questions consumers/entrepreneurs or private dealers/commercial dealers, among other things.

However, many important matters are still controversial:

  • Rights infringements and warnings for copyright violations or ancillary copyright (especially photos), violation of the competition (in particular false or absent terms and conditions/revocation as alleged private sale), trademark infringement/trademark piracy, design infringement, patent infringement.
  • Product-specific special regulations (Electronic Equipment Act, basic price data, cosmetics, detergents, food supplements, books, textile labelling, protection of minors etc).
  • Liability and warranty (warranty period, warranties, revocation period for top rated sellers).
  • Prices (shipping cost transparency, final price)
  • eBay reviews
  • VeRi program from eBay: Blocking of the offer in case of alleged infringement of property rights and threat of account blocking
  • Power Sellers
  • “Buy now”.

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© German lawyer Michael Horak 2002-2017

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