Update on the unauthorised blocking of the seller account: Amazon thwarts service of the preliminary injunction
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We had reported on this:
On 26 June 2019, the Hildesheim Regional Court ruled in an interim injunction that Amazon must immediately lift the block on a seller account, restore deleted listings and immediately release any existing retained credit on the account:
In the meantime, there is news in the case. But different news than you might expect.
Amazon does not comply with injunction
Amazon does not comply with the ban. This fact in itself would not be anything special. Amazon is not exactly known for its customer friendliness.
Apart from that, the company wants to participate in one of the most lucrative markets in Europe, Germany, but is reluctant to abide by the rules that apply there or to have to answer to the local courts. It is no coincidence that Amazon – like almost all other major internet companies – has no registered office in Germany and stipulates in its general terms and conditions (whether effective or not is a moot point) that claimants should sue the company in Luxembourg under Luxembourg law if possible.
Amazon thwarts delivery
In the present case, however, Amazon has gone beyond mere non-compliance with the court’s prohibition (which could be punished with severe fines of up to €250,000 or imprisonment) and – as the Hildesheim Regional Court informed us on request – has simply thwarted the service and thus the enforcement of the injunction, which is necessary for the decision to come into force.
As Amazon is based in Luxembourg, i.e. abroad, effective service is usually effected via the court. This in turn requires confirmation of receipt of the required documents by the company concerned by means of a signature from the person responsible.
They have now apparently used a ‘trick’ and accepted the documents to be delivered, but – contrary to the regulations – did not document the receipt with a signature but only with a mere stamp.
It can only be speculated whether Amazon hoped that the manipulation would not be noticed and lead to an irreparable error of execution and thus to the cancellation of the injunction or whether – in view of the fact that the delivery now has to be rectified – it is merely playing for time.
It is certain that Amazon will not get away with this trickery and that the court ultimately responsible for deciding on the compensation to which the retailer is entitled will take this behaviour into account.
UPDATE 13.8.2019
Amazon has, not unexpectedly, lodged an appeal against the injunction – with almost 250 pages of attachments.
It is interesting to note that the submission contained therein was apparently made in the blue without knowing the application (Amazon claims in the notice of opposition that this is not available) and largely deals with formal arguments from the defence (jurisdiction, applicable law, etc.). The allegedly failed service is also mentioned.
In contrast, the comments on the specific reason for the cancellation are limited to a few lines, in which it is not even disputed that the reason previously given for blocking the applicant, namely the ‘manipulation of product reviews’, never actually existed.
Amazon thus admits in the course of the court proceedings that – always an open secret in retail circles – companies are apparently taken into a kind of ‘clan custody’ as soon as any internal personnel connections to an unpleasant other company become known. But that’s not all. As the present case shows, Amazon does not inform the retailers concerned of this, but apparently blocks them under a pretext.
Details can be found here:
UPDATE 27.8.2019
UPDATE 4.9.2019
UPDATE 9.9.2019
(Disclosure: Our law firm represents the applicant).
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