Last Friday, the Federal Court of Justice has ruled on two trademark disputes concerning the Amazon search engine. The judgments have not yet been published, but the Court’s press release sets out the route.
Plaintiffs were the Austrian company goFit, which sells a foot reflexology massage mat, as well as the bag and sports goods manufacturer Ortlieb. Both companies do not offer their products on the Amazon platform, but via exclusive distribution systems.
Amazon search engine in query.
goFit criticized that the Amazon search engine, when entering the term “goFit”, would display search word suggestions such as “gofit health mat” or “gofit foot reflexology massage mat” due to its auto-complete function. goFit argued that Amazon is misleading users, because they believed that the goFit health mat was available at Amazon, but this was not the case.
The Federal Court of Justice pointed out that it only had to decide on the admissibly of the search term proposals, but not on the Amazon result list, because the latter had not been questioned by goFit. The use of the company symbol “goFit” in the automatic search term completion did not constitute an impairment of the symbol’s trademark right. The displayed search word suggestions did not give the user the unfounded impression that the product was to be found on the platform.
Amazon result list in question.
Ortlieb attacked the Amazon result list. When a user enters the term “Ortlieb”, Amazon indicates offers of products from other manufacturers. The company argued that a customer entering the term “Ortlieb” was specifically looking for this brand – otherwise he would only enter “bicycle bag”. By displaying products of inferior quality to customers, Amazon violated Ortlieb’s brand sovereignty.
The Federal Supreme Court ruled that the platform could only be prohibited from using a trademark if, after entering the trademark as a search word, the user could not recognize whether the displayed products in the result list originated from the trademark owner or from third parties. As the lower court had not made any observations on this matter, the Federal Supreme Court referred back to the Higher Regional Court of Munich.
Outlook.
Manufacturers must therefore tolerate that an algorithm, when entering their brands in the Amazon search engine, will produce search word suggestions that contain their brands – regardless of whether or not their products are marketed on the platform. It remains to be seen whether Amazon, in the opinion of the Higher Regional Court of Munich, makes it sufficiently clear from which manufacturers the products offered in the result list originate.
(19 February 2018)