KG Berlin on Unlawful Customer Reviews – Ruling of July 10, 2024 – Case No. 5 U 92/22
Customer reviews in an online shop can also violate existing trademark rights. The Berlin Higher Regional Court (KG Berlin) emphasized this in its ruling of July 10, 2024 (Case No.: 5 U 92/22), holding the online portal operator accountable for such trademark infringements.
Trademarks are highly valuable for companies, as many customers associate them with the quality of a product. To protect against imitators, trademarks should be registered to enjoy comprehensive legal protection. Trademark infringements can then be addressed legally, as noted by the commercial law firm MTR Legal Rechtsanwälte, which advises on IP and trademark law.
Comparison with Originals in Online Shops
In the luxury goods sector, competitors often attempt to profit from the appeal of an established brand by offering cheaper products resembling the original. This is particularly noticeable with perfumes, where customers may opt for a less expensive version that closely mimics the original scent. To avoid direct comparisons that could constitute trademark violations, customers in online shop review sections could evaluate the cheaper perfume and note, for instance, that it closely resembles the original. This creates a link to the more expensive product.
However, KG Berlin put a stop to this practice in its ruling of July 10, 2024. In the case at hand, a drugstore chain offered perfumes in its online shop that imitated the scents of well-known brands. Customers could post reviews online, referencing the original products. Many reviews noted that the less expensive perfumes were highly similar to the originals, were almost indistinguishable, or served as good alternatives.
Trademark Infringement
The manufacturer of the original perfume argued that this constituted trademark infringement. It demanded that the online shop operator prohibit customer reviews referencing the original scent. The defendant claimed it was not responsible for customer reviews and cited a Federal Court of Justice (BGH) decision rejecting the attribution of customer reviews (Case No.: I ZR 193/18).
However, KG Berlin took a different view. The court argued that the online portal operator could have directly intervened in customer reviews but chose not to exercise this control. Instead, the reviews were deliberately used as a sales tool.
Customer Reviews as a Sales Promotion Tool
The court reasoned that the online portal operator had integrated customer reviews into its website to promote product sales. The operator had deliberately decided to use the reviews as a marketing tool without monitoring whether third-party rights were potentially infringed. The integration of customer reviews was thus not only classified as advertising but also led to the portal operator being held accountable for the reviews.
The court further clarified that the website in question was not a neutral editorial portal for perfume reviews; rather, the reviews were embedded in the product presentation and served the purpose of promoting sales. Therefore, this case could not be compared to the BGH’s decision on a hotel review portal (Case No.: I ZR 94/13). Similarly, the operator could not rely on the BGH’s ruling regarding customer reviews on amazon.de (Case No.: I ZR 193/18), where the seller had no influence over whether customer reviews were displayed. This was not the case here, the court noted.
Vendors Must Account for Customer Reviews
The ruling does not preclude the possibility of imitating products and offering them at lower prices. However, explicit comparative advertising to benefit from the good reputation of the original may constitute trademark infringement. In this context, vendors must also be held accountable for customer reviews if they can influence their publication.
MTR Legal Rechtsanwälte is an experienced commercial law firm in IP law and supports you in pursuing trademark infringements and other trademark law matters.
Feel free to contact us!
