Warning on Amazon, eBay or Etsy?
Warning in copyright law, design law, trademark law, competition law: Amazon, eBay and Etsy are the target of many warnings.
The reason: warnings are constantly being issued on these platforms. Very often the Warnings justified.
Do you also have a Amazon Warning, eBay Warning or Etsy Warning receive?
There are often Trademark infringements, Design infringements, Plagiarism, Picture theft, Text theft or infringements of competition law warned.
Warnings from Amazon, eBay or Etsy are almost never a rip-off!
Again and again we hear that the warnings from Amazon, eBay or Etsy are Fraud, Fake or Rip-off. Sure: we also know the black sheep among our competitors. "Colleagues" like the law firms Fareds, HvLS or Gereon Sandhage dubious general merchants who offer exactly one product in each product group in order to compete with everyone. And even these warnings are usually justified!
It is therefore essential that you take such warnings seriously! Ignoring them can be expensive.
Typical warnings from Amazon, eBay and Etsy
Certain warnings are particularly common with trading platforms. We list some of them here as examples.
Image theft or unauthorized use of photos
Very often clients send us Warnings from photographers who accuse our clients of using their images without authorization.
The most frequent warnings due to image theft are as follows:
- The clear case: The warned party has the Image actually by anyone without being asked stolen and thought nobody would notice.
- #1 oversight: The warned party has a official product image and assumed that it was permitted because he himself is an official reseller, for example.
- #2 oversight: The warned party has a Stock photo which is used as "free of charge" was offered. But the photo was for private or editorial use only really free of charge.
- #3 oversight: The warned party has not Attribution or simply did not know that the author must be named.
The photographer or the holder of licenses or exclusive rights of use then usually demands
- Removal - so Remove of the picture
- Omission - the assurance that the image would no longer be used in the future, secured by a penalized Cease and desist declaration.
- Information - here the warning letter would like to know whether the image is also used elsewherein which Period it was used and often also which Turnover were made through the sales offer with this picture.
- Compensation for damages - The person issuing the warning letter either wants to have his lost profit compensated, skim off the profit of the person being warned or he demands Compensation for damages to License analogy.
- Reimbursement of expenses - These are the Legal fees of the warning letter, but often also to Test purchase costs or Costs of preserving evidencefor example through the commissioning of a Detectives.
What is License analogy?
With the so-called License analogy receives the Cautioned damages in height, the two reasonable parties would have agreed with each otherif the picture Properly licensed would have been.
How high license analog Compensation for damages is on the Individual case to. For snapshots taken by private individuals, amounts between €50.00 and €200.00 are common. Here, too, it depends on whether or not the author has been named.
With Professional photographers however, a significantly higher amount may be demanded. This is regularly calculated according to the Remuneration practice of the photographer asked. Because under German law, no one should be Compensation for damages better off than he would be without the violation of his rights.
Many warning lawyers claim that their clients can Compensation for damages according to the so-called MFM tables the SME photo marketing community demand. This is almost always wrong: on the one hand, the vast majority of courts reject the MFM tables; on the other hand, actual remuneration practice always takes precedence.
How do I deal with a Warning because of picture theft?
The Failure to issue a cease-and-desist declaration or the Submission of a false or inadequate Cease and desist declaration can lead to a lengthy and expensive legal dispute.
We will be happy to settle the matter for you by submitting a modified cease-and-desist declaration. With this, you only promise as much as is absolutely necessary. We also know the reasonable costs as Compensation for damages and reimbursement of expenses and ensure that the warning letter lawyer does not pull the wool over your eyes.
Text theft or unauthorized text use
Occasionally we also receive Warnings from competitors of our clients, which our clients are responsible for, Product texts on Amazon, eBay or Etsy without being asked.
In contrast to the cases of image theft described above, however, these "authors" have a more difficult time. This is because, unlike photographers, they have to achieve a certain Height of creation reach.
§ 2 para. 2 UrhG says:
Works within the meaning of this law are only personal intellectual creations.
In simple terms: copyright is only held by those who have included a certain amount of information in their work. creative performance has provided. This is often not the case with product texts. One speaks of mere utility texts.
We therefore almost always bring these warnings to an end.
The copywriter or competitor then usually demands
- Removal - Remove of the text
- Omission - the submission of a penalized Cease and desist declaration.
- Information - Where did the warned party get the text from, where else does he use it, what turnover was achieved by using it?
- Compensation for damages - lost profit, infringer's profit or Compensation for damages from License analogy.
- Reimbursement of expenses - In the case of text theft, these are usually ("only") the Legal fees.
How high is the Compensation for damages for text theft?
The Compensation for damages is usually based on what reasonable parties would have agreed for a license.
Many warning letters refer to the fee tables of the VG Word. After that, copywriters and journalists are paid by the character.
With Professional copywriter however, a significantly higher amount may be demanded. This is regularly calculated according to the Remuneration practice of the copywriter asked. Because under German law, no one should be Compensation for damages better off than he would be without the violation of his rights.
How do I deal with a Warning because of text theft?
The Failure to submit a Cease and desist declaration or the Submission of a false or inadequate Cease and desist declaration can lead to lengthy and expensive legal disputes.
We will gladly take over the matter for you by submitting a modified Cease and desist declaration or, if appropriate, a well-founded Rejection of the claims. With a modified Cease and desist declaration promise only as much as is absolutely necessary.
In any case, we protect you against unjustified claims or paying too much.
Would you like us to help you? Contact us here.
Warning in trademark law or design law on Amazon, eBay or Etsy
Numerous warnings in trademark law and design law (or utility model law) are issued for trading platforms.
These are often simply Plagiarism. However, property right owners are often mistaken about the scope of their rights, so that Many unjustified warnings in design law and trademark law.
Private sellers and Private individuals on the other hand, cannot commit a trademark infringement. Nevertheless, they are often warned.
But there are also a number of constellations for traders in which the alleged trademark infringement does not exist or can be defended against:
- The registered trademark and the Infringer's mark are only remotely similar.
- The registered trademark is not protected for the product.
- The seller is actually authorizedto sell the product.
- It intervenes Exceptional circumstances the §§ Sections 22, 23 MarkenG in favor of the alleged infringer.
An exception to this is the Exhaustion of the trademark rights. This is the case if the trademark owner has already benefited from the value creation of the product.
Risk of confusion in trademark law
In the Trademark law is always about Risk of confusion. Risk of confusion is the abstract Possibility that the target audience could believe that a product originates from the company of the owner of another brand. However, it does not matter whether even one person really believes it - the "risk" that it could happen is sufficient.
Overall impression in design law
Design law is not about Risk of confusionbut the question of whether a design "no other overall impression" than another protected design.
In order to assess the overall impression, it must first be determined what is protected at all. With registered designs and registered designs the register entry alone determines how far the protection of the design extends. Already at the Registration all kinds of Error so that the alleged violator can often defend himself well.
With so-called unregistered Community designsn, determining the scope of protection is often more complex. Currently, the Federal Court of Justice (BGH) to decide whether this non-registered protection only applies to whole products or also for Product details should apply. Warned parties can also take advantage of this legal uncertainty!
What do warning letters demand in trademark law and design law on Amazon, eBay and Etsy?
- Immediate and complete Removal (i.e. removal) - of the product.
- Omission the import or sale by submitting a penalized Cease and desist declaration.
- Information about the origin of the goods by a Right to information.
- Publication of plagiarism for Destruction of these goods.
- Payment of Compensation for damages.
- Cost of the Warningusually from a value in dispute of 50.000 € for unknown brands or designs up to 250.000 € for well-known brands and popular designs.
Can I simply use the enclosed Cease and desist declaration and save money?
We strongly advise against taking action yourself in such a case, because in trademark law it is almost impossible for a layperson to take action against the opposing specialist lawyers to decide such proceedings in your favor. Let us, experts in trademark law, represent you profitably. Contact us here.
Warning in competition law (UWG) for Amazon, eBay, Etsy
There are also numerous warnings circulating in competition law on Amazon, eBay and Etsy. Here are the most common contents:
- The Link (clickable) to the ODR dispute resolution platform of the European Union missing
- Wrong or Missing revocation instruction
- Errors in the General Terms and Conditions (GTC)
- Error in the Imprint
- Error with Labeling requirements
- No entry in the Packaging register after the Packaging Act
- Missing CE marking
- Advertising with guarantees and lack of clarification as to when these apply
In these cases, too, the warning letter always demands
- Removal
- Omission by submitting a penalized Cease and desist declaration
- Information about the Scope of the infringement
- Compensation for damages
- Reimbursement of legal fees and any other costs
Should I use a "modified Cease and desist declaration"?
It is not enough to simply delete all offers that are in the Warning be reprimanded. This is because the rights holder wants to be certain in this case that such a Injury his Rights not repeated. One speaks of Risk of repetition. However, this can certainly only be achieved by penalized and valid for life Cease and desist declaration be eliminated.
One Cease and desist declaration must be serious. A Risk of repetition can therefore only be effectively excluded if you have a Contractual penalty in the event of repetition of the infringing acts. How high such a Contractual penalty and in which cases it should apply is the lawyer's trade. A contractual penalty that is too low or "wrong" will certainly lead to Lawsuit or preliminary injunction.
You can often Declarations to cease and desist the Rights holder in such a way that the infringer has to pay less or sometimes not at all even in the event of an infringement. This modified Cease and desist declaration can help to reduce the threat of contractual penalties for trademark infringers. An experienced lawyer can therefore help you at the beginning of the defense alone. A lot of money save!
Let Robert Meyen, specialist lawyer for intellectual property rightsadvise and defend. Contact us here.
Information and legal fees
Many of our clients underestimate the Warning the Right to informationwhich the Rights holder against the Violator asserts.
In this case, the Infringers of trademark rights, design rights, copyright or competition law all documents and data relating to sales of the goods concerned to disclose. From the invoice, the number of sales, a revenue and surplus statement to the publication of the associated associated profit.
In addition, the infringer of the Trademark rights or Design rights are generally obliged to disclose where these plagiarisms originally came from. Here, however Caution requiredas in the Doubts the opposing side a Lawsuit for information, which the Defendantthe infringer of the trademark right, quickly far more than 5.000 € can cost.
It goes without saying that the Costs of lawyers which are carried in a Value in dispute from 150,000 €, 200,000 €, up to 250,000 €, are extremely high.
We advise you and are happy to take over the defense of your Warning due to infringements on trading platforms such as Amazon, eBay or Etsy
If you have been informed of a Warning due to an infringement in online trading are affected, please call us or send us a message and we will take all the necessary steps for you.
You can rest assured that we will handle your matter conscientious and fast edit. This increases the chances of Significant costs for the other party to lower.
Please don't defend yourself: arguing from outside the field annoys the opposing lawyers and won't get you anywhere! You will most likely find yourself in a very expensive process in court which will quickly inform you about 10.000 € will cost.
The first goal in the defense against such Warning is often the fastest possible delivery of a modified Cease and desist declaration. This has the highest priority!
We are happy to represent you nationwide in your matter. For a non-binding initial consultation, please use our Contact form or write - preferably with the Warning as an attachment - to kanzlei@marken.legal.
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