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BGH confirms jurisprudence around content liability: eBay can be liable for its users' auctions - Kinderhochstühle im Internet III

Ebay is under certain circumstances responsible for auctions held on his internet platform. This is what decided the German Federal Court (BGH) in case Ebay through publicity gives the link to auctions that violate the law and even after getting notice of it do not proceed to cancel the link. (BGH, ruling from February 05 2015, reference number I ZR 240/12 - highchairs for children Internet III).

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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