The company Stokke from Norwegian is the producer of the chairs for children named „Tripp Trapp“ and owner of the German and European brand „Tripp Trapp“ and „Trip Trap“. The Stokke limited company distributes the products of the Stokke plc in Germany and has a license to use the brands of the Stokke plc. Ebay uses on Google the so called ad words publicity campaigns. This way the users of search functions are shown advertisements that match the search criteria. There were also offers of imitations of the child chairs Tripp Trapp made by Stokke. Stokke gave notice of this to Ebay and asked Ebay to cancel all these offers and to make sure that all imitations of child chairs Tripp Trapp will not be offered through Ebay. The BGH decided that Ebay has the right to cancel offers and to control new offered articles set on their platform. because EBay is responsible for the offers of the users. ( breach of duty and care). As "Störer" someone can be hold responsible without being the participant or the perpetrator– who in any way leads to rights being violated. Service suppliers according to § 7 paragraph. 2 p. 1 TMG are not hold to control all the activities of the user and make sure that no law is violated. However according to the case law of the BGH and EuGH the service supplier with concrete references to a violation of rights must eliminate it and take necessary measures to avoid such violations in the future.
Ebay is liable as a "Störer" because the link to offers of imitated child chairs contributes to an infringement of the trade mark. Since Ebay got notice of the existence of offers of imitated child chairs they deliberately violated the trade mark. For this reason EBay must interrupt the offers that violate the law and take necessary measures to avoid similar violations of law in the future. The BGH does not accept that there is no automatic software that can discover automatically law violating offers. It is to be expected that Ebay will be able to search for imitations due to higher personnel expenses. The BGH justifies this saying that EBay due to the search criteria and ad words campaign created a high risk.
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