Dispute between Coty and Amazon over Burden of Proof Continues

On Thursday, 15.10.2020, the Federal Supreme Court referred a further trademark dispute between Coty and Amazon on the subject of exhaustion back to the Munich Higher Regional Court (OLG). The Federal Supreme Court assumed the proceedings after the judgement against Amazon in order to comment on the only unanswered question about the burden of proof regarding the origin of two Joop! perfumes. After that it looked as though the Federal Supreme Court wanted to take the approach of the OLG Munich, according to which the burden of proof must differentiate between the market partition of selective distribution systems and the market partition of national trademarks. However, in the oral proceedings the Presiding Judge of the 1^st court of appeal, Mr. Koch, made it clear that this was not to be expected. Rather, the Federal Supreme Court regards individual clauses in Coty’s contractual system as problematic. The OLG Munich now has to determine whether the suspicion of a market bulkheading can be derived from this. In this case, Coty would bear the sole burden of proof for the alleged trademark infringement by Amazon. Otherwise, Amazon would have to submit far more information regarding the chain of purchase than they have so far.

With the referral, the general suspicion against selective distribution systems as such is off the table. There are good reasons for the clauses that Coty has used for the last 25 years. The European Commission even distributed a “comfort letter” on an earlier version of the contract with these clauses. In the area of selective distribution hardly any other contract has survived so many court cases as Coty’s, most recently in the much-cited “Coty Judgement” of the European Court of Justice of 6. December 2017 (C-230/16).