OLG München; 2016-09-29; 29 U 745/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:0929.29U745.16.0A
Date: 2016-09-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0929(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff, distributing perfumes for Davidoff and Marc Jacobs, filed an action against four companies of the Amazon group seeking a cease and desist order, the provision of information, handover of goods and the payment of fees for legal representation prior to court proceedings. Defendant 1 domiciled in Luxembourg operates the amazon.de market place, defendant 2 domiciled in Luxembourg operates the homepage amazon.de, defendant 3 domiciled in Graben, Germany, stores the ordered goods and defendant 4 domiciled in Luxembourg and having a subsidiary in Munich offers the goods on the homepage amazon.de.
The plaintiff claimed that the defendants were responsible for the infringement of plaintiff’s trademark rights through allowing third parties to sell the perfumes Davidoff Hot Water EdT 60 ml and Marc Jacobs Oh, Lola! EdP 100 ml on amazon.de.
The Landgericht München (hereinafter ‘the Court of First Instance’) dismissed the action.
The admissible appeal of the defendant filed with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was not justified.
Withing the appeal proceedings, the complaint of the lack of international jurisdiction could be maintained solely in respect of defendant 2. The international jurisdiction of the German courts under Article 97(4)(b) of the Council Regulation (EC) No 207/2009 (1) in combination with Article 24(1) of the Brussels I Regulation (2) in relation to defendants 1, 3 and 4 was established as a result of the defendants having participated in court proceedings without objecting to the court’s lack of jurisdiction.
The Court of Appeal stated that the plaintiff was not entitled to be rewarded the claims sought by the action, for the defendants had not committed or participated in the alleged infringement of trademark rights and therefor no liability of theirs as infringer could be established.
Defendant 1 who allowed third parties to sell on the platform ‘amazon.de market place’ including the programme ‘Shipping through amazon’, was not in possession of the contested perfumes nor did it sell them. For this reason, defendant 1 was no offender, participant or infringer. Upon receiving the information from the plaintiff regarding the infringement of its rights through a third party, defendant 1 met its inspection duties and informed the third party accordingly. Nevertheless, the goods were sold outside by this third party outside the European Economic Area.
The storage or shipping alone for a third person through defendant 3 doesn’t mean that defendant 3 would be offering or placing unlawfully signed goods on the market. Defendant 3 acted within the programme ‘Shipping through amazon’ on behalf of the third party and had just as little legal power of disposal with the goods as the external provider in charge of the transport itself.
Finally, the plaintiff is not entitled to be rewarded the claims sought against defendant 4. The indicated address of defendant 4 for returning the goods does not mean that defendant 4 itself was shipping the goods. This was more likely to mean that defendant 4 was only a recipient of the declaration of the intention to return the goods, acting as a middleman for third parties within the ‘amazon.de market place’ service offered by defendant 1.
The Court of Appeal dismissed the appeal of the defendant against the judgement of the Court of First Instance.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.