In its judgment of 12.05.2016 (Ref.: 29 U 3500/15), Munich Higher Regional Court ruled that Amazon was in breach of trademark law if it also displayed competitor products in the results list when searching for branded products.
Amazon displays competitor products in brand searches
The owner of the company “Ortlieb” had filed a lawsuit against Amazon and claimed an injunction under trademark law. Ortlieb sells its bags for sport and leisure, water bags, rucksacks and bicycle bags mainly independently via online stores and does not work with Amazon.
In the case in which a customer entered the term “Ortlieb” in the search mask of the Amazon web store, not only Ortlieb brand products were displayed, but also products from competitor brands. The reason for the display of competitor brands is an algorithm programmed by Amazon that sorts the search results according to “relevance”.
Munich Higher Regional Court confirms trademark infringement by Amazon search result
The Munich Higher Regional Court confirmed the first-instance ruling of the Regional Court and ordered Amazon to refrain from presenting products from competitors in the results list of its internal search engine when “Ortlieb” was entered. According to the Munich Higher Regional Court, Amazon had used the protected trademark “Ortlieb” to present similar products from competitors. This constituted trademark use.
With this judgment, the OLG Munich agrees with the opinion predominantly represented in case law (OLG Frankfurt a. M., judgment of 11.02.2016 – 6 U 6/15) and opposes the opinion of the LG Berlin (judgment of 02.06.2015 – 91 O 47/15).
Distinctive character of the trademark is impaired by the search result
The designation of the trademark basically serves to distinguish the protected product and to identify it from its competitors. If the customer’s attention is drawn to competitors’ products after entering the trademark in the search function, the distinguishing function is disregarded. Amazon uses the trademark “Ortlieb” as a pilot function to redirect customers to competitors’ products.
Not a case of “keyword advertising“
According to the Munich Higher Regional Court, it is also irrelevant whether the customer recognizes that the goods displayed are clearly competing products. This is because there is no case of “keyword advertising”. This only includes the case in which labeled advertising material is displayed on the websites depending on the individual keywords. On Amazon, the competitor products were in any case not marked as advertising and clearly differentiated from the products of the brand owner Ortlieb. This gave the customer the impression that the goods displayed were all Ortlieb brand products.
Amazon must adapt its algorithm
In order to avoid trademark infringements in the future, Amazon had to adapt its search algorithm. The OLG dispels Amazon’s objection that it is not technically possible to change the algorithm by referring to other online stores. This is because other stores are perfectly capable of programming their algorithm accordingly. The appeal was not allowed.
It is advisable for all operators of online stores to check their algorithm in order to avoid costly injunctive relief and claims for damages.