# News Detail Share now [](https://www.linkedin.com/uas/login?session_redirect=https%3A%2F%2Fwww.linkedin.com%2FshareArticle%3Fmini%3Dtrue%26url%3Dhttps%3A%2F%2Fwww.hoyngrokhmonegier.com%2Ffr%2Factualites%2Fdetail%2Fhigher-regional-court-hamburg-online-marketplaces-may-be-directly-liable-for-counterfeits-sold-by-third-party-merchants%26title%3DHigher%20Regional%20Court%20Hamburg%3A%20Online%20marketplaces%20may%20be%20directly%20liable%20for%20counterfeits%20sold%20by%20third-party%20merchants%26summary%3D "Linkedin") # Higher Regional Court Hamburg: Online marketplaces may be directly liable for counterfeits sold by third-party merchants 06 octobre 2026 Hot Topic News Publication **Facts of the case** In a dispute over counterfeit products, a manufacturer of electric hair styling products has now successfully enforced its EUTM against the online marketplace Wish.com at second instance. As early as 2019, the claimant had noticed that third-party sellers were offering counterfeit versions of its branded products on the platform. After repeatedly and unsuccessfully reporting the listings to Wish.com, the manufacturer took direct action against the online retailer itself, rather than against the third-party merchants. In the claimant’s view, the sales platform was directly liable as a perpetrator due to its own infringements of trademark law. It also alleged breaches of unfair competition law, as the listings on the platform lacked the required withdrawal policy and trader details. Following registration, third-party merchants can sell products on Wish.com. The entire technical process, including product presentation, payment processing and dispatch, is handled by the online platform. There is no direct means of contacting the third-party merchants. In some cases, they trade under pseudonyms or cannot be identified at all due to the absence of legal notice details. The Hamburg Regional Court partially upheld the claim, but stated that, under trademark law, the online marketplace was liable under the German legal doctrine of “Störerhaftung” (secondary liability as an interferer) rather than as a directly liable perpetrator for the third-party sellers’ listings. The court did not find any claims under unfair competition law against the defendant. **Decision** The Hamburg Higher Regional Court ruled that the offers infringing trademark rights constituted the online marketplace’s own use of the trademark. Wish.com was therefore liable not as an interferer but directly as the perpetrator. The online marketplace had adopted the third-party traders’ use of the trademark as its own. Such adoption of a third-party seller’s action as one’s own is to be presumed in particular where users are given the impression that the platform operator is selling the goods in question in its own name and on its own account. The sales platform creates this impression by presenting goods in a uniform manner across all listings. Various listings are advertised, in some cases with identical text and images, without disclosing the identity of the third-party merchants. A button labelled ‘Contact seller’ merely directs users to the defendant’s chatbot. In addition to the technical and logistical aspects of sales processing, the defendant’s terms of use for third-party merchants also stipulate that it may set the final prices displayed for items and sell returned goods on its own account once a certain period has elapsed. The defendant is therefore not a mere intermediary but plays an active role in the content of its platform. Accordingly, it cannot invoke the privileges of platform operators under Article 6 of the Digital Services Act (DSA). Also, with regard to violations of the German Unfair Competition Act, direct liability should be presumed on the basis of a breach of the duty of care. An act of unfair competition already lies in the attributable creation of a risk that third parties may infringe the interests of market participants protected under unfair competition law. The platform is obliged to take structural measures to ensure that third-party merchants fulfil their obligation to provide information on the right of withdrawal. Furthermore, given the systematic pseudonymisation of merchants’ details, a breach of the obligations under unfair competition law must be assumed. **Takeaways** The ruling is good news for trademark owners who are confronted with counterfeit versions of their products on major online platforms. The ruling recognises the comprehensive control that operators effectively exercise over access to and the display of platform content. With expert legal advice, taking direct action against online marketplaces can now help to avoid the difficulties that regularly arise when enforcing claims against a large number of unknown third-party sellers based outside the EU. HOYNG ROKH MONEGIER has extensive experience in the pan-European enforcement of trademark rights. Drawing on our many years of expertise, we support clients in the fight against product counterfeiting – from identifying the parties involved to developing the most effective enforcement strategy. By [Mathis Breuer](https://www.hoyngrokhmonegier.com/fr/our-team/legal-experts/mathis-breuer) and Clement Mensah