Legal risks when selling through Amazon Marketplace
Wine deals often contain costly warning traps that go unnoticed.
There is no one who can avoid the Amazon market: not only as a buyer, but also for many merchants, Amazon offers a simple and comprehensive selling opportunity like almost no other digital platform. Placing offers is fast, hassle-free and also offers many valuable services such as payment processing, storage and shipping. No wonder Amazon has become the online market leader in Germany.
But selling through Amazon Marketplace has its dangers. Sellers do not have much influence on the legal compliance of the article detail page, which normally already exists. Sellers are not even notified of sudden changes made by Amazon in the product presentation. This opens up a real Eldorado for deterrents if traders do not check their offer themselves daily.
Unfortunately, Amazon itself is not the cause of the reasons for warning In the focus of warning agents, but traders -especially financially- much weaker. In addition, they do warning associations a favor too often: They pay the warning fee, comparatively «small», and sign the attached cessation statement without checking it: the main thing is that the demand is «off the table». But a new violation of the legal requirements is at the same time a violation of the declaration of cessation that was made earlier. This can quickly end in an economic disaster for those affected when warning agents, such as the IDO (Interessenverband für das Rechts- und Finanzconsulting deutscher Online-Unternehmen e.V.)sometimes require the contractual penalty of several thousand euros after only a few weeks.
Also, an item should only appear once on Amazon Marketplace. The greatest danger, from which many other risks arise for sellers, is the «adherence» to a page of details of existing articles practiced by Amazon. If you want to sell an item that another seller already has on offer, you will be attached to their item page, with all the consequences. Because according to the case law, the trader is clearly responsible for defects existing on this page or produced subsequently. Why not create a new article detail page now? ¡ If this article is already offered for sale by another trader, this is inadmissible because it is legally assessed as misleading (cf. OLG Hamm, judgment of 12.01.2017 Az. 4 U 80/16)!
So you don’t fall into the warning traps in Amazon Marketplace, here are the weak points and possible sources of error:
A sale is hardly conceivable without product images. However, if details are shown, such as original packaging or accessories that are not included, this is misleading under competition law.
It is equally fatal if you or the person who sells «above» you use the image of a product without having the right to use and exploit it. In doing so, you also infringe the copyrights of others, even if you haven’t uploaded the image yourself.
I would also like to mention the possibility that Amazon itself may display images of items unsuitable for your product due to an incomprehensible algorithm problem. This would be misleading for customers and could lead to warnings from competitors.
Attaching to existing Amazon items should be treated with caution – even if attached to branded items such as inventory items or items containing the retailer’s name (usually in the subtitle with «from»). If you can only deliver a similar item, perhaps even optically almost identical, but not the brand product, you risk costly demand.
Lack of basic information on prices
As in all online commerce, Amazon must also always indicate the basic price, in addition to the total price, for products sold by weight, volume, length or area (art. 2, para. 1, of the PAngV-Price Indication Regulation). This means: The base price must be displayed, for example, in the Amazon search results, on the Amazon offers page, in the cross-sell view «Sponsored products to choose» as well as in the «Offer for this product» view. Amazon says it will stop displaying products from the wine category, as well as baby products, food and beverages, drugstore and personal care, beauty, pets and cleaning products if the base price is missing. Unfortunately, in my experience, I cannot confirm that.
Amazon must also provide its customers with a confirmation of the contract, in which the content of the same is reproduced, on a durable data medium after the completion of the order (art. 312f, paragraph 2 BGB). If you send the email with the order confirmation, be sure to attach the general conditions and policy and the cancellation form, or attach them to the delivery of the goods (for example, on the back of the invoice).
But beware: if you leave the shipment of the goods to Amazon and, therefore, also the sending of the automatic order confirmation by email, it may happen that the concrete content of the contract no longer appears there!
If you sell through Amazon, you will never have a moment of peace of mind, and this also applies to information about shipping costs. This is because Amazon may suddenly delete information about shipping costs that has already been entered on the seller’s profile page (under the heading «Shipping»). Instead, a general Amazon notice appears that tells customers how to determine specific shipping costs. This is not enough for legal compliance, and may result in a warning.
It does not seem so important to Amazon that you, as a seller, comply with your printing obligation under Article 5 of the TMG. But it is crucial for you: after all, you could face a fine of up to 50,000 euros under Article 16 of the TMG. Therefore, check your print periodically to make sure your phone number and email address are indicated.
Therefore, the axis of a legally secure sale through Amazon Marketplace is your willingness to regularly check the presentation of your offer to check its integrity and authenticity.
If, in spite of everything, you receive a demand, my recommendation is: do not pay or sign anything without checking it, after all, you are responsible for the rest of your «online life»!