In its ruling of 3 December 2015 (case reference: I-15 U 140/14), the Higher Regional Court of Düsseldorf found that the abusive use of the eBay Verified Rightsholder Program (VeRI) is anti-competitive.
If the property rights of another party are not actually infringed, the “reporting” constitutes a targeted obstruction pursuant to Art. § Section 4 No. 4 UWG. The abusive rights holder is liable as the perpetrator.
The VeRI program from eBay
To combat the misuse of trademark rights, eBay has developed the so-called VeRI program. This is intended to provide a quick remedy and mediate between the parties. An affected rights holder can use this program to report the infringement of their rights. The user is then given the opportunity to contact the rights holder. The rights holder can then grant or refuse consent for use.
No material examination by eBay for VeRI notification
The VeRI program does not provide for a review by eBay. Rather, the platform aims to reach an agreement between competitors. If they come into contact and no agreement can be reached despite negotiations, eBay reacts quickly. In case of doubt, eBay has the option of removing the listing.
The unjustified trademark complaint
The infringement of property rights such as trademark rights plays a major role not only in the context of eBay auctions. The abundance of the Internet harbors the risk of rapid infringement of rights. The action taken by the entitled party against an infringement is sometimes justified, but sometimes also unjustified.
The BGH had already dealt with an unjustified trademark complaint with Google in its ruling of March 12, 2015 (case reference: I ZR 188/13). An infringement of rights could not be established here. The BGH then clarified that a targeted obstruction of competitors pursuant to Section 4 no. 10 UWG must be assumed. § 4 No. 10 UWG was to be assumed. The anti-competitive action leads to a warning.
Targeted obstruction of competitors possible
If an eBay provider advertises an offer without infringing the rights of another party, he can demand the consent of the authorized party to use it. However, if use is refused, the court considers the action to be a deliberate obstruction. The unauthorized refusal prevents the sale and constitutes an infringement of competition law.
The liability of the rights holder
In its ruling, the Higher Regional Court of Düsseldorf found that the rights holder was indisputably liable as the perpetrator. By setting up the VeRI account, a so-called source of danger was created. In this case, the rights holder cannot exculpate himself and cannot escape liability.
These considerations show once again that rights holders should not take hasty action against alleged infringements. A precise examination of the individual case is recommended in order to prevent warnings and claims for damages.