DAVID VS GOLIATH – LANDMARK DECISION ON TRADEMARKS AS PILOTS
In the legal dispute between the bicycle bag manufacturer ORTLIEB and AMAZON, the German Supreme Court (BGH) has now handed down a landmark decision and Ortlieb has long defended itself against the practice that when customers enter „Ortlieb bicycle bags“, they end up at Amazon, where they are also shown other offers from other manufacturers, some of which are significantly cheaper. Ortlieb itself does not sell its own products via the Internet platform and usually prohibits its partners from doing so. Nevertheless, Ortlieb products have also been sold via Amazon in the past, for example products that the online retailer himself purchased and then resold.
If a customer expressly searches for Ortlieb products via a search engine and then also receives a list of products from other manufacturers when clicking on the hit at Amazon, the Higher Regional Court of Munich had already seen this as an inadmissible use as a pilot and thus illegal exploitation of trademark rights. This was mainly due to the fact that a user may assume that only suitable offers – i.e. only products of the company Ortlieb – are displayed due to the design of the advertisement. The BGH has now fully confirmed this decision.
Another lawsuit against Amazon, in which Ortlieb had previously failed, shows that the concrete question is very important. If a customer searches for Ortlieb products directly on Amazon pages, then offers from other manufacturers may also be displayed, provided this is made sufficiently clear. The decisive factor is therefore whether the customer starts a general search query on the Internet or carries out a search at Amazon.