In its decision of March 11, 2009 (I ZR 114/06), the German Federal Court of Justice had to decide the question of whether the owner of an account at eBay is legally liable if a third party uses such account for copyright, trademark or unfair competition law infringements without the owner’s knowledge. The defendant, the owner of the account, defended himself by saying that his wife had used the account without his knowledge to sell personal items. Among these items was a necklace offered by the wife of the defendant that was described as being “Cartier style.” Cartier brought claims for trademark infringement, copyright infringement and infringement of unfair competition law.

The civil court, as well as the Frankfurt Court of Appeals, dismissed the claims. The German Federal Court of Justice reversed the decision by the Court of Appeals and remanded the matter. Unlike the Frankfurt Court of Appeals, the Federal Court of Justice took the view that the defendant as the owner of the eBay account was liable for copyright or trademark infringement, and for unfair competition law infringement, if he did not take adequate measures to make sure that his wife did not have access to the user name and password of the eBay account. The legal argument made by the Court to support this is the violation by the owner of the account of the duty to store the access information safely.

For trademark and copyright owners, this decision is positive. It brings legal certainty with respect to the question that was debated both among courts and scholars of whether the owner of an online account is liable for improper use by third parties if the access information is not stored safely. After this decision by the Federal Court of Justice, the dismissal of the claims will likely not be upheld by the Frankfurt Court of Appeals once the matter has been heard there once more.