Many wine merchants use Amazon Marketplace as a sales platform. But beware: without daily control of all data, the risks of being targeted by warning associations are high. Hans-Peter Kröger, a lawyer and wine merchant specialising in online law, clarifies the situation.There is hardly anyone who can avoid the Amazon Marketplace any more: not only as a buyer, but also for many traders, Amazon offers a simple, wide-ranging sales opportunity like hardly any other digital platform. Placing offers is fast, uncomplicated and in addition it offers many valuable services such as payment processing, storage and shipping. It is no wonder that Amazon has become the market leader among online marketplaces in Germany.
But selling via Amazon Marketplace has its dangers. Sellers do not have much influence on the legal conformity of the - usually already existing - item detail page. Sellers are not even notified of sudden changes made by Amazon to the product presentation. This opens up a veritable Eldorado for dissuaders if traders do not check their offer themselves on a daily basis!
Unfortunately, Amazon itself is not the cause of the warning reasons In Focus of warning agents, but the - especially financially - significantly weaker merchants. Moreover, they too often do the warning associations a favour: They pay the comparatively "small" warning fee and sign the attached cease-and-desist declaration without checking - the main thing is that the warning letter is "off the table". However, a renewed violation of legal requirements is at the same time a violation of the cease-and-desist declaration that was previously submitted. This can quickly end in economic disaster for those affected when warning agents, such as the IDO (Interessenverband für das Rechts- und Finanzconsulting deutscher Online-Unternehmen e.V.), sometimes demand the contractual penalty of several thousand euros after only a few weeks.
An item should also only be listed once on Amazon Marketplace. The greatest danger, from which many other risks for sellers result, is the "attaching" to an already existing item detail page practised by Amazon. If you want to sell an item that another seller already has on offer, you will be attached to his item page - with all the consequences. Because according to case law, the trader is clearly liable for defects existing on this page or produced later. Why not simply produce a new item 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, judgement of 12.01.2017 Az. 4 U 80/16)!
A sale is hardly conceivable without product images. However, if details are shown, such as the original packaging or accessories that are not included, this is misleading under competition law.
It is equally fatal if you or the person selling "above" you uses a product image without having the right to use and exploit it. In doing so, you also violate the copyrights of others - even if you did not upload the image yourself.
I would also like to mention the possibility that Amazon itself could display unsuitable item images for your product due to an incomprehensible algorithm problem. This would be misleading to customers and could result in warning letters being taken down by competitors.
Attaching to existing Amazon items should be treated with caution - even if you attach to branded items as inventory items or to items that contain the retailer's name (usually in the subheading with "from"). If you can only deliver a similar, perhaps even optically almost identical article - but not the branded product - you risk an expensive warning letter!
As is the case everywhere in online trade, on Amazon you must also always indicate the basic price in addition to the total price for products that are sold by weight, volume, length or area (§ 2 para. 1 Price Indication Ordinance-PAngV). This means: The base price must be displayed, for example, in the Amazon search results, on the Amazon offer page, in the cross-selling view "Sponsored products to choose from" as well as in the view of the "Offer for this product". Amazon states that it will no longer display products in the wine category as well as baby products, food & beverages, drugstore & personal care, beauty, pets and cleaning products if the base price is missing. Unfortunately, in my experience I cannot confirm this!
On Amazon, too, you must provide your customers with a confirmation of the contract, in which the content of the contract is reproduced, on a durable data medium after the order has been placed (§ 312f para. 2 BGB). If you send the e-mail with the order confirmation, make sure that you attach your general terms and conditions and the cancellation policy and form to it or enclose them with the delivery of goods (e.g. on the back of the invoice).
But be careful: If you leave the dispatch of the goods to Amazon and thus also the dispatch of the automatic order confirmation by e-mail, it may happen that the concrete content of the contract is no longer displayed there!
If you sell via Amazon, you will never have a moment's peace - and this also applies to the information on shipping costs. This is because Amazon can suddenly remove information on shipping costs that has already been entered on the seller's profile page (under the heading "Shipping"). Instead, a general Amazon notice appears, telling customers how to determine the specific shipping costs. This is not sufficient for legal compliance - and can result in a warning!
It does not seem to be so important to Amazon that you as a seller comply with your imprint obligation according to § 5 TMG. But it is crucial for you: After all, you could face a fine of up to 50,000 euros according to § 16 TMG! Therefore, check your imprint regularly to make sure that your telephone number and e-mail address are stated.
The same applies to the specification of your e-mail address and telephone number in the cancellation policy! Also regularly check the complete presentation of your GTC and check whether the existing links are clickable, for example in the privacy policy.
The linchpin of a legally secure sale via the Amazon Marketplace is therefore your willingness to regularly check the presentation of your offer for completeness and authenticity!
Should you nevertheless receive a warning letter, my recommendation is: do not pay and sign anything without checking, after all, you are liable for it for the rest of your "online life"!