Joop perfume to Amazon – a case for the courts – Munich

The manufacturer wants to prevent his fragrance from being sold by the online mail order company. In a lawsuit in the Higher Regional Court of Munich, he gets right.

In November 2015, a certain Sabino Carella of Amazon ordered Joop two packets of Eau de Toilette of 75 milliliters. The goods, it is to accept, arrived punctually at the customer – but instead of a thank you letter, the online retailer had a lawsuit: The perfume maker sued Amazon for omission. Coty Germany GmbH was in Munich District Court, and even after the appeal hearing Thursday in the Higher Regional Court, the plugs of Amazon in Schwabing are unlikely to have jumped: the Higher Regional Court dismissed the appeal of the mail order company. sold by "Krethi and Plethi", as one of the badociate judges said. As a result, the Company enters into securities account agreements with resellers that correspond to the concept. It states, inter alia, that products may be supplied to final consumers only for private use and only in known "normal quantities" of the household; this means in this case: three pieces per purchase. Custodians are only allowed to exchange goods between themselves if the sale goes beyond national borders: German can therefore sell to the French and vice versa, but not to the compatriot concerned. This regulation is necessary because of EU law, otherwise there might be a suspicion that national markets should be sealed off each other.

EU laws have also given rise to litigation, including a change to trademark law. He states that a trademark holder can not prohibit the resale of his products in the EU if he has himself introduced them to the European market – so, according to the lawyers, his rights are "Exhausted" with respect to the continuation of the operation. And precisely on these paragraphs Amazon has invoked at the hearing of the Higher Regional Court: Its products fall under exactly this legal regulation.

The problem with this: For this, the online retailer should prove that his goods actually come from the EU. But he did not want that, because: "Then the spring would have dried up immediately." Coty also claimed to have determined from production figures that the bottles came from the buyer's buyer Sabino Carella of Dubai, so no European law would cover resale in Germany.

Amazon's lawyer had to notice very quickly, that the OLG Senate was willing to follow the district court's decision – so it tried to save what could be saved, but had to let the judges know that what she was criticizing was precisely the purpose of the law: The right of trademark owners to decide for themselves who is allowed to sell their products. According to the Senate, the company can immediately end the conflict by revealing where the goods come from. But as he did not want to, he simply had to live with the consequences: In a so-called judgment of the President, namely a verdict at the end of the trial, without further appointment, the Senate dismissed the appeal and gave reason to the perfume maker. Contrary to Amazon's suggestion, the Federal Court review was not allowed – it should have gone to basic legal issues. However, Andreas Müller, the Senate Speaker, said: "The BGH has already clarified everything."

Editor's note: In an earlier version of the text, Amazon was not a fragrance Joop can sell more. In fact, it is a prohibition of indirect sale. The manufacturer Coty has the right to determine its distribution channels. He does not want to sell the perfume via Amazon, but only through the deposit sellers. These can be delivered to end users and other third party suppliers in other EU countries – but not Amazon. Thus, Amazon can obtain and distribute Joop perfume only when a seller-seller breaks his contract with Coty. A re-import from non-EU countries forbids the trademark right.