Ortlieb and Lubberger Lehment prevail against Amazon in dispute over product images

On 10.10.2018, Ortlieb Sportartikel GmbH and Amazon tried a case before the Copyright Senate of the Court of Appeal in Berlin about the use of Ortlieb’s product images on amazon.de. After successful first instance proceedings before the District Court in Berlin, the proceedings were terminated by a withdrawal of the appeal by Amazon.

On amazon.de each product is featured with a uniform presentation containing a product description and a product image. The product images are fed into amazon.de by the retailers who use Amazon Marketplace. An algorithm then selects the images suitable for presentation. These are often the original images of the manufacturer. That also applied to the present case. Ortlieb sued Amazon Eu Sarl which trades on amazon.de in its own name, and Amazon Services Europe Sarl which is responsible for the Amazon Marketplace. Ortlieb considers the use of its product images on amazon.de to be an improper appropriation of its advertising material and an intervention in its distribution. Ortlieb operates a selective distribution system and does not supply to Amazon.

The District Court in Berlin decided in favour of Ortlieb and ordered Amazon to injunctive relief, surrender of information and payment of damages for copyright infringement. Amazon appealed that decision.

In today’s oral hearing in the Appeal proceedings, the Court of Appeal made it clear that it considered the decision by the District Court to be correct and that the appeal had no prospect of success. With regard to the product images, Amazon is not a neutral platform operator, but plays an active role and is therefore directly responsible for the use of the images. In addition, the Senate rejected Amazon’s argument, pursuant to which Ortlieb was enforcing its distribution system in an abusive manner, as unfounded. The 24th Senate had already pointed out in writing on 4.10.2018 the lack of prospects of success of Amazon’s appeal.

Under the impression of these statements by the Senate, Amazon withdrew its appeal at the end of the oral hearing.

The case goes far beyond the specific facts of the case at hand. The question of copyright infringement by Amazon arises every time a retailer uploads a product image to amazon.de without the permission of the rights owner.

Amazon EU Sarl and Amazon Services Europe Sarl were represented by Dr. Jens Heidenreich of Harmsen Utescher. The Presiding Judge of the 24th Senate of the Court of Appeal is Mr. Harte.

Ortlieb Sportartikel GmbH was represented on the part of Lubberger Lehment by Dr. Kai Schmidt-Hern and Eva Maierski.