Ricardo judgment (interference liability)
The Ricardo -judgment is a decision of the Federal Supreme Court (BGH) of 11 March 2004 ( references omitted 158, 236-253; Az: I ZR 304/01 ) for nuisance liability of a host - provider (eg a. Auction platform ) for trademark infringement by Offers posted by users.
The clarification of the judgment of the BGH that the liability privilege of § 11 sentence 1 TDG does not concern the injunction claim (see below) is also taken over by the courts of instance. However, according to the clear statements of the BGH, it should be noted that the host provider's liability (including forum or community operators) is limited. The BGH focuses on the breach of inspection obligations by the operator, their scope and existence in individual cases. In the case law of the courts of instance, the determination of the examination obligations is also based on the "commercial nature" of an offer (see, for example, most recently: LG Munich I judgment of December 8, 2005 - Az. 7 O 16341/05). With regard to the still-to-be-awaited reasons for the decision of the much discussed "HEISE judgment of the LG Hamburg ", the yardstick for liability of the operators of forum platforms and the like should also in future be set. The like. are not so intensified that a "paralysis of the Internet" is to be feared. Rather, the operator appears to be liable for third-party, illegal information only after knowledge of illegal content, provided that there is no negligent ignorance or a breach of existing inspection obligations on the part of the operator.
facts
The owners of the Rolex brand sued the Internet auction platform "Ricardo" unsuccessfully for infringement of their trademark rights for injunctive relief and compensation because replicas of Rolex watches had been offered for auction on their auction sites. The watches were referred to as replicas or replicas in the offer texts formulated by the Ricardo users and were offered with minimum bids between 60 and 399 DM. "Rolex" argued that the offers were the auction house's own content, or at least the auction house had made the third-party content of its users its own.
Guiding principles
Internet auction
- The liability privilege of § 11 sentence 1 TDG, which exempts the service provider who stores third-party information for a user ("hosting") from responsibility, does not affect the right to cease and desist.
- The fact that a service provider opens a platform as part of hosting on which private and commercial providers can auction goods on the Internet is not sufficient to be regarded as the perpetrator of a trademark infringement if a provider falsify branded goods (here: false ROLEX watches ) puts up for auction. Liability as a participant in the trademark infringement committed by the provider presupposes at least conditional intent.
- Liability as an interferer presupposes that the service provider has reasonable control options to prevent such trademark infringement. He cannot be expected to check every offer made directly on the Internet in an automated process to determine whether third-party property rights are infringed. If a service provider becomes aware of a case of trademark infringement, he must not only block the specific offer immediately, but also take technically possible and reasonable measures to ensure that no further corresponding trademark infringements occur.
- A risk of confusion under trademark law is not excluded by the fact that the goods provided with the foreign mark are expressly designated as "replica" or "replica".
For the reasons
- "[...] the offer descriptions of a provider who uses the defendant's platform for third-party auctions are not the defendant's own information, which they hold ready for use by third parties and for which they" according to § 8 para. 1 TDG is responsible to the general laws ”. Rather, this is external information within the meaning of § 11 sentence 1 TDG, for which the defendant is only responsible under the conditions specified there. "
- “As can be seen from the overall context of the legal regulation, the liability privilege of § 11 TDG nF does not apply to injunctive relief claims. This is expressed in the wording of § 11 sentence 1 TDG only to the extent that it speaks of the responsibility of the service provider. This only addresses criminal liability and liability for damages. However, § 11 TDG says nothing about whether a service provider can be called upon to cease and desist in accordance with general tort law standards or as a disruptor if a publication in the service operated by him violates the (trademark) rights of a third party. [...] that the liability privilege of § 11 sentence 1 TDG does not affect injunctive relief claims is also suggested by the provision of § 8 paragraph 2 TDG. There it says on the one hand in sentence 1 that "Service providers within the meaning of §§ 9 to 11 [...] are not (are) obliged to monitor the information they transmit or store or to investigate circumstances that indicate illegal activity". In sentence 2, however, it is then clarified that "Obligations to remove or block the use of information according to general laws [...] even if the service provider is not responsible according to Sections 9 to 11 (remain) unaffected". § 8 paragraph 2 sentence 2 TDG is applicable to all service providers according to §§ 9 to 11 TDG. "
- "The regulation of the German legislature in § 8 Paragraph 2 Clause 2 TDG corresponds to this with Article 14 of Directive 2000/31 / EC on electronic commerce [...] The provision of Article 14 of Directive 2000/31 / EC concerns hosting, i.e. a service for storing third-party content. According to the regulation in paragraph 1, which the German legislator has implemented through § 11 TDG, the member states must ensure that in such a case the service provider is `` not responsible for the information stored by a user '' if he has `` no actual knowledge of illegal activity or information (has) 'or after becoming aware of it' immediately takes action to remove the information or to block access to it '. Paragraph 3 makes it clear, however, that injunctive relief need not be covered by this privilege (see also Recital 46 of the Directive). There it says:
- This article is without prejudice to the possibility that a court or administrative authority, under the legal systems of the Member States, could require the service provider to end or prevent the infringement or that Member States establish procedures for removing information or blocking access to it.
- The fact that injunctive relief are or can be excluded from the liability privilege also explains why Art. 14 Para. 1 lit. a of the guideline and, following it, § 11 sentence 1 no. 1 alt. 2 TDG new version sets lower requirements for claims for damages than for the rest of the liability: the member states may provide for liability for damages if the service provider has no knowledge of the illegal activity or information, but if it is aware of facts or circumstances from which the illegal act or information becomes apparent '. If the right to cease and desist from the liability privilege in Art. 14 of the guideline and Section 11 sentence 1 no. 1 alt. 1 TDG new version, this would have the difficult to understand consequence that higher demands would be placed on the injunction claim than on the claim for damages. "
- "(1) The appellate court rightly assumed that the person who - without being a perpetrator or participant - in any way deliberately and adequately causally contributes to the infringement of a protected property can be claimed to cease and desist as a disruptor for an infringement of property rights . [...] In the event of a violation of intellectual property rights, which are also protected as absolute rights under Section 823 (1), Section 1004 of the German Civil Code, the principles of liability for interference are to be applied without restriction. [...] Because the interferer's liability may not be extended excessively to third parties who have not carried out the unlawful impairment themselves, the liability of the interferer presupposes the breach of inspection obligations. Their scope is determined by whether and to what extent an examination can be expected of the person alleged to be the interferer under the circumstances. […] A company that - like the defendant - operates a platform for third-party auctions on the Internet cannot be expected to examine every offer for a possible violation of the law before it is published on the Internet. Such an obligation would call the entire business model into question. [...] On the other hand, it should be noted that the defendant is involved in the sale of the pirated goods through the commission owed to it. Under these circumstances, the defendant's interest in the most cost-effective and smooth running of its business operations is of less weight [...] This means that whenever the defendant has been made aware of a clear violation of the law, not only immediately block the specific offer must (§ 11 sentence 1 no. 2 TDG new version), it must also take precautions so that there are no further such trademark infringements if possible. "
literature
- Stefan Leible in: New Legal Weekly . 2004, pp. 3225–3227 (discussion of the decision)
- Dennis Schultz in: Competition in Law and Practice . 2004, pp. 1347–1355 (decision-making discussion)
- Gerald Spjndler in: Legal journal . 2005, pp. 37–40 (note)
- Cornelis Lement in: Intellectual Property and Copyright . 2005, pp. 210–214 (article)
- Daniel Rücker in: Computer and Law . 2005, pp. 347–355 (article)
- Thomas Gramespacher in: JurPC Web-Doc. 131/2005 , para. 1–28 (article on liability for interference)
- Volkmann in: Computer and Law. 2005, p. 767 (comment on the judgment)
- Christian Rütz in: European Intellectual Property Review. 2005, N-67 f. (Comment on judgment)
Web links
Individual evidence
- ↑ European Intellectual Property in the English language Wikipedia
