If you enter a specific brand into the search mask on the Amazon online platform, the corresponding search result appears. However, alternative products from other manufacturers are also displayed. The Higher Regional Court of Frankfurt a.M. decided whether this is a trademark infringement.
The action was taken against the online platform Amazon and its search function when the term "FATBOY" was entered.
The owner of the trademark "FATBOY", which is particularly involved in the manufacture and sale of beanbags, classified the display of competing products in the same list of results as a trademark infringement.
He is of the opinion that the targeted public could have a misconception about the origin of the products on offer.
Amazon, on the other hand, believes that there is no trademark use. The average buyer of goods offered in online stores knows that their search functions produce a result in which goods from different product groups and origins are displayed.
The court's decision on the Amazon search result
The OLG Frankfurt a.M. decided with Judgment of 11.02.2016 - Ref. 6 U 6/15that a trademark infringement had occurred and thus confirmed the opinion of both the trademark owner and the Frankfurt am Main Regional Court, which had already ruled against Amazon in the first instance.
The use of the sign impairs the trademark's function as an indication of origin, as there is a possibility that the user of the sales platform will associate the products of a competitor with the product he is looking for.
The facts of the case were compared with the real world of sales. Anyone who asks the salesperson in a department store for products of one brand expects the salesperson to show them these brand products and not their competitors' products - especially not without being asked.
Conclusion
The OLG Frankfurt a.M. did not decide whether a trademark infringement also exists if the alternative offers do not appear as part of a uniform set of results but are clearly separated from it. At least a large price difference between the products or the color highlighting of the brand label is not sufficient.
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