A 31 year old eBay shop was due to multiple fraud on the auction site eBay was sentenced to a sentence of two years probation. The dealer had fled temporarily to another country and was arrested during the re-entry. That the punishment were relatively moderate, hung together so well that the man not initially intended, to deceive its customers.

What had happened?

Now he lives in Fulda man had initially a small online business with navigation devices and mobile phones on eBay begonnen.Mit increasing success of the auctions the dealer his business grew, however, over the head. After a few months, more than 150 customers had paid for goods they had not received. Thereupon several times for fraud on eBay criminal charges made against the dealer. This was subsequently withdrawn a large sum of money from his account and had fled out of fear of prosecution in Greece. He was in the re-entry but then arrested by the police.

Opinion of the Court

The district court sentenced the Fulda dealer for multiple fraud on eBay's platform to a prison sentence of two years. This sentence was suspended on probation. These take into account that the dealer is not from the beginning had in mind, its customers, to cheat and not to deliver the paid goods. More than 2,000 eBay transactions were previously run smoothly. Rather was in the business with increasing sales growth over the head. Moreover, the man had traveled four months sitting in custody.

Conclusion:

If through platforms like eBay contracts exist, these are legally binding and must be respected. If ordered and paid for not delivered, are not only civil claims for reimbursement of the purchase price. As this case shows, this can lead on eBay and Co. quickly exceed the limit on criminal law and a conviction for fraud.

23.09.2010 » by lawyer Sören Siebert

 

The theme of "withdrawal and return policy" is due to massive warnings for shop operators, service providers and dealers on eBay, Amazon & a red cloth. 06/11/2010 to Now, a change in the law in force that brings all the online merchants important changes. All return and cancellation must exactly be revised to this day. The concern is that online stores that do not act, a new threat warning wave. For this, the amendment also positive, as the ability to finally buy and with 14 days of withdrawal to teach.

14-day right on eBay and Co.

Also on sale and auction sites like eBay, Amazon, or Yatego the questions the customer can now take a withdrawal period of 14 days be given instead of a month. This was previously not possible on eBay, as necessary for 14days-time, of a notification in writing before the contract is concluded. However, this is on eBay platforms, we can not because of the nature of the contractual process, since it not even his party prior to the contract knows. Merchants who still taught here with a 14days time limit had not long to wait for a warning.

It is now possible with appropriate design of the sales process, even with eBay & Co offer a fairly safe withdrawal period of 14 days. is the unequal treatment of eBay merchants and shop owners there - if certain requirements are met - no more.

Due to many misleading reports in relation to the new cancellation and most importantly:

It's not that eBay will automatically for each trader a right of withdrawal is 14 days. You must continue both before and immediately after the contract conclusion written instructions.


The current amendment has been longed for in advance from dealers, industry associations and interest groups. Linked to this was the hope that for many vendors almost impenetrable rules of the distance law would now be understood and above all the multiple warnings to an end would be. This hope is probably only partially fulfilled. There are also in the future, despite some simplifications of the right to withdraw a number of risks, warning:

Risk warning 1: The comments and design suggestions are implemented incorrectly

The official cancellation pattern can not without changes and additions for eBay or online stores to take effect. The cancellation pattern together with the numerous design references, form a modular system. The most common Abmahnfehler result that the numerous design suggestions for the official cancellation patterns are not properly executed.


The European Court of Justice (ECJ) has decided on 03.09.2009 by a ruling that the regulations are to pay compensation in revocation of certification in Germany illegally. Unfortunately, the legislature has not managed to resolve this issue under the current law amendment. It will enter into force on 11.06.2010 a regime that is unlawful under the jurisdiction of the ECJ.
Warning Risk 3: 14 days cancellation period, but no immediate instruction after the conclusion

There is no way to automatically for all dealers are subject to a cancellation period of 14 days. It is necessary now that consumers are informed immediately after the contract in writing of the revocation. If not, is a teaching with 14days-time wrong and can be given a warning and continue.
 

by lawyer Sören Siebert

Manufacturers of branded goods of all kinds do not like to see if their high-priced products from online stores or on eBay much cheaper and are sold at a loss without the usual in retail stores often high-quality product presentation. But manufacturers can require merchants in general, whether and how the product can be sold on the Internet? And sales restrictions have implications for the buyer of the product?

Sales ban on online retailer?

Online retailers report in the consulting practice more often assume that the manufacturers of goods directly or indirectly through intermediaries to try to stop the sale of goods over the Internet. The manufacturers are concerned about the difficulty constructed image of a brand or product. Specifically designed to prevent that product is sold below a certain price, in order not to slip on the "Low Profile". If online retailers offering goods online will continue to threaten massive consequences:
The shop owners are no longer supplied, some long-term contracts are terminated. Also warnings between manufacturers and dealers, and litigation in this context are no longer rare.

The decisions of the courts

In essence, here are faced with two choices. The Berlin court (case no 16 O 729/07) had to decide whether the manufacturer of famous brand satchel "scout" the commercial sale of its goods on the auction site eBay is to be forbidden. Argument of the manufacturer was also damage to the brand by the "cheap sales" in the network. Scout failed, however, before the Berlin court, the online retailer could sell the school bag on eBay.

In a second recent decision, the Munich Higher Regional Court (dated 2 July 2009, Case No.: U (K) 4842/08), however, decide in favor of the manufacturer. The Amer Sports Corporation, a manufacturer of various sports article which prohibit dealers selling certain brands on eBay. This went against the competition headquarters before the courts. The Higher Regional Court of Munich ruled in this proceeding, that there is a legitimate interest of the manufacturer and distributor of online Future Auctions may be prohibited.

What impact will the legal confusion to the buyer?

Buyers, the high-priced branded goods purchased over the Internet can have peace of mind. You do not need to issue warnings and fear not the product. This gene set apart from the play alone in the competition between law firms and have no direct impact on consumers.

Conclusion:

The legal situation is completely open, the court ruled in two (at least in principle) similar cases, once the benefit of the manufacturer, once the benefit of the online merchant. Pending clarification by the legislature can give online retailers and manufacturers in this matter no general guidelines on hand. This must always be checked in each case whether a sale is permitted.
 

SCOUT-school bags may continue to be sold on eBay

The manufacturer of the famous brand satchel failed in his attempt to leave the commercial sale of its products on eBay prohibit courts for quality reasons.

Many dealers now sell their products through the eBay auction platform - that will include many new school bag on eBay for sale. With precisely the situation had now, however, the Berlin court ruling to deal with from 21.04.2009. (Ref. 16 O 729/07).

What had happened?

The manufacturer of the SCOUT-satchel would prohibit a Berlin stationer selling his school bag on eBay platform because it "is detrimental to the brand." As a result of this ban sales of stationery dealers went to court - and rightly so, as the judges determine now. According to the Berlin Regional Court, it is classified as anti-competitive if the producers would deliver to their dealers depend on to be sold then in what ways the products.

Conclusion:

Meanwhile, many new goods on eBay are offered for sale, so it seems doubtful whether any damage to the brand by offering new items on eBay really takes place. The LG Mannheim in a similar matter in March 2008, however, held that a sales ban on traders on eBay is not anticompetitive.




by lawyer Sören Siebert

Can a dealer compensation claim online if a consumer orders a water bed, this first building and filled with water, but then cancels the contract? The judges of the Supreme Court decided the question now, confirming the lower court decisions granting, in which the dealer was ordered to refund of withheld compensation.

What had happened?

The plaintiff bought the defendant in August 2008, a water bed for the price of 1,265 €. The offer of the defendant distributor of waterbeds on the Internet offered for sale was the applicant by e-mail was sent as an attached PDF file. The text of the e-mail contained a revocation, which stated among other things:

"In view of the above cancellation, we would like to add to the fact that regular filling of the mattress of the waterbed deteriorate and not because the crib is to sell as new."

The water bed was delivered to the buyer, who built it and filled the mattress with water. He then exercised his right of withdrawal. After collecting the water bed, he asked the seller to refund the purchase price. The seller refunded the full purchase price rather than merely a sum of 258 € and claimed that the bed was no longer for sale. Only the heating value of the reimbursed amount is recycled.

Opinion of the Court

The district court of Berlin-Wedding, the place where the repayment of the balance of the purchase price of 1.007 € directed action. The Berlin Regional Court rejected the arguments of the seller. Directed against the revision of the seller had no success. Who among other responsible for the Sale of Eighth Civil Division of the Federal Court in its Judgement of 03 November 2010 (VIII ZR 337/09 Az) held that the purchaser can demand the return may have occurred despite the depreciation of the full purchase price, as he has examined the goods only.

An avowed opposition by the time the consumer distance contract has the effect that the benefits received were to be returned by the parties, the judges said. If the object received deteriorating or perish, is to provide compensation. It should consumers pay according to § 357 para 3 sentence 1 BGB also substitute for the intended putting into use of deterioration caused if he had been informed at the latest on the contract in writing to this consequence and a way to avoid them. The liability for compensation exists, however, under § 357 para 3 sentence 2 BGB (old version, now set 3) it will not, except if the degradation due entirely to the examination of the case. The latter was the case here. The structure of the bed and filling the mattress with water would simply be an examination of the case dar.

Conclusion:

The verdict shows that consumers with a generous-sized right to audit on-line products ordered due. This also includes the construction and commissioning of the ordered products. At first glance, the right to audit will be welcomed from a consumer perspective. However, there is a risk that feels invited a number of consumers to order goods without having the intention to hold it.

The cost of such abuse the right of withdrawal will not only traders but also the honest consumers, who continue to expect price increases, if the dealers take into account the risk, return goods no longer be able to offer as new, in the prices.

22.11.2010  by lawyer Sven Jansen 

Mitt competitors on a regular basis to send warning letters, because the competitor has infringed the law. The question of when a warning is invalid for formal reasons or not, the Supreme Court has ruled.

What had happened?

The parties negotiated with used cars. The defendant advertised in a car magazine two used car with the words: "This award is without any warranty. The plaintiff saw the notice of the ads is against mandatory warranty requirements of consumer goods. Therefore, he cited the defendant for a breach of competition and invited him to submit a penalty clause declaration and to pay Abmahnkosten. The lawyer of the defendant rejected the notice served on the plaintiff because the warning is no power of attorney of the plaintiff's lawyer was attached. He also made a recast imitator. Thereupon the plaintiff of the payment of Abmahnkosten claimed.

Opinion of the Court

The Federal Court gave its ruling of 19.05.2010 (Case No.: I ZR 140/08) the plaintiff and awarded him legal right to reimbursement for out-of-court legal fees. The judges made clear that the warning was not therefore invalid, because no power of attorney had become attached. According to § 174 sentence 1 BGB is a unilateral act, which is a representative one makes to others, ineffective if the agent does not present a power of attorney and the other the right business for this reason reject it immediately. However, whether the court considers that provision does not apply to the competition caution. This unfolding purely formative action against the infringement litigation.

Conclusion:

A lack of power of attorney alone will not invalidate the warning. An authorization certificate may also be filed later.

16.11.2010  by Stud. jur. Christin Plescher

The use of images and photos to the creation of sales opportunities for online auctions such as eBay usually leads to higher demand. What is important here, shows the following decision of the OLG Brandenburg.

What had happened?

The defendant offered in an online auction privately with a GPS receiver for sale. He backed his bid with a photo of the applicant. Subsequent release of the defendant a warning because of the unauthorized use of the image. In addition, he claimed damages in the form of fictitious license fees.

Opinion of the Court

The Brandenburg Higher Regional Court has stated in its decision of 03.02.2009 (ref. 6 U 58/08), the plaintiff law. The lower courts court found that the plaintiff disputed the author of photos. In addition, it could be demonstrated beyond doubt the court considers that the defendant had obtained no permission for the use of the images and nor intended. Therefore, the defendant owed the plaintiff damages. This is the option of the applicant in the form of a reasonable royalty to be paid. Reasonable is a license fee required for granting a reasonable contractual licensor and licensee would be granted a reasonable. They then accepted the judges a license fee in the amount of 40 €. The defendant also has the legal fees of 100 € to be paid.

Conclusion:

This decision shows once again that strange photos may be used only with the consent of the author. Otherwise threaten warnings and compensation.

30.09.2010 » by Stud. jur. Christin Plescher

Many terms and conditions or on the part of online stores, there are clauses such as "No non-free return," "non-free return of excluded" or "not free returned goods is not accepted. The use of such terms are often not aware that you enter here a high-risk warning.

"Return unfree "clauses are not permitted

The LG Hamburg (5 W 15/07) and the OLG Hamburg (3 W 7 / 08) have held in this regard that such clauses in terms and conditions (AGB) or on the Shop pages, the details of the shipment or the right of withdrawal not permitted are. The law stipulates that the entrepreneur has to bear the principle cost of the revocation. Only in the context of the so-called "40 € clause" the right of withdrawal, the shop owner to impose through appropriate design of the shop and cancellation terms these costs to the customer.

Also refusal to accept non-free returns is a competition infringement

The non-acceptance of goods have been returned under the cancellation is not free, a competition infringement dar. The LG Dusseldorf has Judgement of 07.23.2010 (ref. 38 O 19/10) ruled. The court viewed the refusal a violation of § 4 UWG No. 11, since the statutory provision is violated, stating that the dealer has to bear the costs of withdrawal and therefore the shipping cost.

Conclusion:

Store managers should refrain from "back extension unfree" clauses because of the high Abmahnrisikos. As part of the € 40-clause can online retailers - but only when given the appropriate structure and terms of cancellation - by moving the back end costs to the customer.

24.09.2010 by lawyer Sören Siebert

Warn off competitors, if Web sites do not meet the legal requirements. This is for example in the case of an incomplete imprint. It is, however, the question of what happens when carried warnings for minor infringements of competition law and are valued at too high a fee. This question is the LG Paderborn deals.

What had happened?

The applicant is commercial online retailer for luggage, backpacks, satchels and school supplies. The defendant also sold commercially like products. The applicant has warned the defendant at a previous warning against because of various minor infringements of competition law and made a too high value of the claim asserted.

Opinion of the Court

The District Court of Paderborn gave its ruling of 22.07.2010 (Az: 6 O 43/10) the applicant is not right. The judges saw the applications as inadmissible, because clearly it has a line of rights in this case. The applicant wanted to achieve through its actions do not get fair competition, but only pursue his interest charges. In addition, there were a completely excessive reaction of the applicant. This is evident, inter alia, that this was not the only process of the applicant. This was continuing cease and desist proceedings in other courts against at least five so-called "major" supplier of school bags.

Conclusion:

The verdict shows that more or less unwarranted warnings do not have the intended result. Less than ever, if only the fee interest in the foreground.






21.09.2010  by Stud. jur. Christin Plescher

The question is whether the terms of clause "If force majeure or other circumstances, their removal is impossible, there is no obligation" is effective, the district court Munich I has employed. It came to the conclusion that the customer gets the wrong impression that he can not cancel the contract and is obliged to perform.

What had happened?

For the parties it was competitors who offered items for sale on the internet. The applicant complained following terms clause in the online shop of the defendant: "If force majeure or other circumstances, the disposal is impossible, there is no obligation. In his view, the clause was contrary to the principle of transparency.

Opinion of the Court

The judges of the district court Munich I argued in the Judgement of 05 August 2010 (ref. 12 O 3478/10) the plaintiff law. The clause in question in fact contravene the principle of transparency. An AGB-clause must be sufficiently clear and unambiguous manner that the customer was readily possible to detect the content right. The customer must be protected from any risk of discouraging the enforcement of legitimate rights to be.

The disputed terms of clause does not meet these requirements. Consumers get the impression that he remains obliged to perform, even though the seller in return and could not afford to cancel the contract either. Since this is not complied with the statutory regulations, the use of the clause is invalid.

Conclusion:

The verdict shows the vulnerability of terms clauses for lack of transparency. The risk of a warning and a subsequent injunction threatened, even if the creators had no intention of writing a non-transparent clause. The present case was such that the clause only the obligation but not the counter-obligation was settled.

For the authors of the terms it may have been granted compensation for loss of liability against the liability is abolished. The verdict makes clear that it protects against this fact but not to be taken to cease to deliver. To ensure that terms of withstanding judicial review, it is useful to write this by a lawyer or to have it checked.





19.11.2010  by lawyer Sven Jansen

The participation of PayPal safe to Bill, it will in future be able to handle online purchases by invoice. This is to be profitable, especially for small and medium-sized online retailers, which no separate payment system to integrate the account. According to Spiegel Online should be combined gradually in the coming months, the payment forms.

The purchase of the account is still one of the most popular payment methods. Because this is also why no bank or credit card information must be submitted online. This provides more security and convenience for the customer.

Who should ultimately pay by invoice, the payment service provider checks in advance exactly. For only if the identity and creditworthiness of the customers are known, even this method of payment is possible. This in turn provides maximum security to the Internet retailer. The payment process is safe to Bill and gives the dealer the warranty, plug-on that the payments due the money Bill Safe and the customer will claim the back. Bill calls for safe, industry-dependent, 4 - 7 percent of the bill. This is more calculated than PayPal payments for credit or payment. Since there are 1,2 - 1.9 percent of the bill.

"PayPal wants to be an innovative company, whose greatest asset is security, and the payment method account could offer in order to have more confidence in online commerce,", says the CEO of PayPal Europe, Renier Lemmens. "We see ourselves as a partnership in which each contributing the best know-how." Together with Bill Safe is clearly striving to become the leader in online purchasing invoice.

PayPal is a subsidiary of eBay, one of the largest online auction houses online. Declare themselves to the payment system is available for 190 markets worldwide. Currently, more than 224 million customer accounts are managed, of which about 15 million accounts in Germany.

Bill is a young safe payment service, offered since 2009 by the financial media AG. However, it has so far established that Bill Safe now has more than 300 online stores to their customers. Including Dilego, Maxstore and Ultralux.




07.11.2010  by Manuela Jung

The Federal Court had to decide a case in which a customer used an online purchased water bed for several days and then return it to the dealer. The customer would have paid the entire purchase price, the dealer refused and made compensation for the use of the bed claim. The Supreme Court now had to determine whether the filling and use of the water bed leads to a compensation duty of the customer.

What had happened?

The plaintiff was the seller of a waterbed in the repayment of the total purchase price claim. He had him on the ground after filling by the applicant is only the pump of the water bed resold, only a pro rata refund of 1,265 € 258 €. The difference between the original purchase price had to report to him not because he is not the shell of the water bed can continue to sell. This was made clear by its addition to the cancellation:"In view of the above cancellation, we would like to add to the fact that regular filling of the mattress of the waterbed deteriorate and not because the crib is to sell as new."

Ruling on the merits

With the ruling of the Supreme Court turned 11.03.2010 (Case No.: VIII ZR 337/09) is now clear that the payment of compensation by the buyer, not principle, is impossible. The buyer has to deterioration or destruction of the goods replaced. Here, the consumer must be in accordance with § 357 para 3 sentence 1 BGB also pay compensation for a pay by the "intended putting into use of" deterioration caused when he was alerted to the latest on the contract in writing to this consequence and a way to avoid them. According to § 357 III BGB sentence 3 no longer be necessary to pay compensation but if the deterioration is due exclusively to the examination of the case. The fact that the seller had filled the water bed and found then to be bad, whether such an examination, the accounts would now result in liability for compensation. The buyer was therefore entitled to a refund of the purchase price.

Conclusion:

The purpose of the withdrawal right is to protect the consumer. First, is there to be given the option of "quick by click" downed contracts to refrain. Second, it should be given the opportunity to test things like a business and then decide whether to keep the thing. is a fundamental obligation to pay compensation, possible in light of these thoughts, because otherwise the potential compensation would be adequate to discourage consumers from its revocation, the Court of Justice back on 03/09/2010.

For the dealers, this situation is far worse. They degenerate into a "hire station, their risk has long been not only the enforcement of their entitlements, but now the cost of acquisition of revocation cases - perhaps in the knowledge that the consumer to withdraw from the outset intended.







05.11.2010  by stud. iur. Michael Nicolai

In case of withdrawal and return of goods by a consumer, the online retailers usually carry the cost of the return. The question of who the buyer is the cost, so the shipping costs to pay, was referred to the ECJ for a decision. This had imposed in its decision of 15.04.2010 (ref. C-511/08) the cost of returning the dealer. The decision of the ECJ is the Supreme Court in its ruling of 07.07.2010 (ref. VIII ZR 268/07) is now accepted.

What had happened?

An online retailer had determined in its terms that the consumer has to pay a flat amount for shipping. This delivery charge should not be reimbursed in the event of cancellation. Against that decision to a consumer association injunction.

Opinion of the Court

The Federal Court had referred to the ECJ the question of spare capacity, he Hinsendekosten for decision. This is because the right of withdrawal is based on a European Distance Selling Directive. As before the ECJ, the court now ruled that the dealer has to bear the costs. Albeit with different reasoning. While the ECJ's decision on an appropriate allocation of risks between merchant and consumer based, because consumers who've already been to the costs of the return, the Supreme Court could not use that argument. In Germany, the consumer bears the cost of the return according to § 357 para 2 BGB is limited to a value of 40 €. Nevertheless, the court argued that the directive in the event of cancellation of a distance contract is designed so that the consumer is entitled to a claim for refund Provided send cost.

Accordingly, it was impossible for the defendants, in their ABG consumers the costs for the shipment of the goods sold by it and then pay when they assert their right of withdrawal.

Conclusion:

The Supreme Court follows the outcome of the decision of the ECJ. As a result, to get that mail order from now on higher costs in the case of returned goods. Dealers who have imposed these costs to date to the buyer, must adapt their terms.




17.08.2010  by lawyer Sven Jansen

As the Federal Office for Information Security (BSI) tells the new version of the current AusweisApp is fully explored. The software is AusweisApp for the use of the eID feature of the new ID card, ie the ability to authenticate security for online transactions, is required. As we reported recently, there are vulnerabilities in version 1.0, so that the BSI has disabled the download and discouraged from using the AusweisApp Ver 1.0.

Now the parties OPENLiMiT SignCubes AG and Siemens IT Solutions and Services GmbH have prepared a new revised version of the software. Currently, this version of the BSI is extensively tested and tested. Following successful tests, the new version of the app will pass www.ausweisapp.bund.de on the website for downloading provided.

BSI brings cumulative future updates

Parallel to the tests, the BSI has examined the processes for updating procedures and optimized to quickly evaluate the future on the part of users and service providers reported problems with the AusweisApp provide updates and fast way. BSI will also make regular appointments cumulative updates will be available. This vulnerability can be detected quickly closed and improves functionality and ease of use are imported. In special cases, then updates can also "Hotfixes" be done immediately.

User involvement in the development

Before the introduction of this has already been AusweisApp of users, service providers and in supporting research projects tested and developed. As shown by the current reports can not be excluded that there is software that must be used on a variety of device configurations, you may experience problems and vulnerabilities. This is where the optimized quality assurance.
Therefore, early notification of security issues, bugs and feedback of the users are included in the update process.

Proposals, suggestions, or reports of errors or weaknesses on the part of users that contribute to improving the ease, efficiency and security of the card app continues to be warmly welcomed by the BSI.

To meet the requirements, the BSI has ePA@bsi.bund.de the e-mail address provided on the internet or other ways to exchange information among www.ausweisapp.bund.de. Thus provide, in addition to internal quality assurance processes, the users themselves for more security at the user and the Internet.




by Thomas Scheunemann

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