Admonishment for Selling Piracies

My client auctioned off four baseball caps from his favorite team two weeks ago. A seller bought all of them and paid promptly. A few weeks later, the baseball club’s attorney admonished him that he was selling piracies. He demanded that my client sign a negative covenant and pay an invoice over € 1,600. The client asked me whether he was really legally required to pay.


Generally speaking, the club’s attorney acted quite properly. In order to gain assurance that you will not violate their rights again, the club may demand that you admit in writing that you infringed their rights, and state that you will re-frain from doing so in future and will pay damages (license, attorney costs, etc). In case of future infringements, can expect a hefty fine.

The legal situation is currently under discussion. §14 II MarkenG clearly forbids the commercial sale of protected pirated products. Some courts have ruled that private individuals, who only sell items occasionally, should not be treated as businesspersons.

The OLG Cologne (re 6 U 12/01) applies stricter rules to persons selling products on the Internet. If a private individual sells items to an indeterminate number of persons, the Superior Regional Court in Cologne will consider this to be commercial. In this case, it is irrelevant if you yourself merely bought pirated products and did not know that they were fakes. Furthermore, the court considers any auction on the Internet to be commercial – even if you are demonstrably not a professional trader.

Therefore, to be absolutely on the safe side, I recommend not selling any objects on the Internet that enjoy trademark protection. If you do you receive an admonition, contact an attorney who specializes in trademark law. These cases are not trivial!

What about your CDs from outside of Europe? Don’t even think of trying to sell them here over the Internet. Following the ruling of the Higher Regional Court in Cologne and European law, it is forbidden to sell products from third coun-tries commercially within the EU without having paid customs duty at the border. In such cases, proprietors of video stores might admonish you.

Published on the old CMS: 2006/12/21
Read on the old CMS till November 2008: 990 reads

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