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Warning Notice as an eBay seller

There are many commercial traders on the auction platform eBay, and people who sell things they no longer need in a private context. If you only sell a piece of clothing or a book from time to time, you usually don't have to worry about a warning.

Abmahnung Ebay
Have you received a warning as an eBay seller? Call (040) 3501 6360 or write an e-mail to info@kanzlei-bennek.de.

The situation is different when any kind of collection is sold, for example, the entire household of a deceased relative. Then you may receive a warning notice.


1. eBay is not a flea market
2. No uniform case law
3. Information obligations of commercial traders
4. Who issues warnings?
5. What is the legal situation with eBay classifieds?
6. How to best respond to a warning on eBay
7. Do not be afraid to go to a lawyer!

1. Ebay is not a flea market

Many private sellers do not think about whether they may act commercially when they place large offers on the auction platform.

If you see eBay as a big flea market, this is also easy to understand. Because if you rent a space at a flea market and set up your stand with all kinds of different junk, no one would even think that you are acting commercially. Neither a lawyer nor the competitor from the next stand will visit you, take a look at your offer and then send you a warning letter.

However, if you offer your junk on eBay, you are formally operating an online trade. And this is subject to fixed rules.

2. No uniform case law

Buying and selling on eBay is always associated with a certain thrill and fun.

Can I get a bargain and get the book I want for little money? Or will grandma's old living room lamp perhaps fetch me a considerable sum of money? Unfortunately, many users don’t know that an auction on eBay is a legal act in which a valid contract is concluded.

This also applies to 1-euro bargains. In principle, therefore, sellers must consider and comply with the statutory provisions on online trading, for example, the right of withdrawal or certain information obligations.

The big question is: When can a seller be classified as commercial? The case law on this is highly divergent and favors lawyers who issue warnings.

For example, the Federal Court of Justice ruled in a 2008 judgment that as few as 25 reviews are sufficient to be considered commercial. By contrast, in 2007, the Hamburg Higher Regional Court deemed a figure of 242 reviews in two years to be commercial.

It becomes problematic to sell many similar items, such as used books or a coin collection. Even ten new items posted can be considered commercial in the legal sense.

3. Information obligations of commercial traders

According to the German Civil Code, commercial online merchants must provide their customers with accessible information to view. This includes:

  • a revocation instruction
  • General Terms and Conditions (GTC)
  • a proper imprint
  • accurate price information
  • exact delivery times
  • an accurate and detailed product description

If one of these points is missing, a warning can quickly be issued on eBay by a lawyer specializing in such cases.

4. Who issues warnings?

In principle, any entrepreneur can issue a warning to other competitors. The prerequisite for this is that a competitive relationship exists between the two companies. This is generally not the case for a private eBay seller.

However, since the boundary between personal and commercial scope is fluid, even supposedly private eBay sellers run the risk of being warned off.

In practice, some companies have increasingly issued warnings. One of them is Hiddemann & Weiß GbR.

5. What is the legal situation with eBay Kleinanzeigen?

The information requirements described above apply not only to auctions on eBay, but also to eBay Kleinanzeigen. Due to the limited space there, a cancellation policy and terms and conditions can hardly be accommodated.

It is also not sufficient to refer to another page via a link, where the relevant information can be found - an easy target for lawyers.

6. How to best respond to a warning on eBay

You will probably be shocked when you receive a warning letter in your mailbox. It is not uncommon for claims of several hundred or even a thousand Euros to be involved.

For someone who only sells something now and then, that's a lot of money. On top of that, the wording is often threatening. It's best to stay calm.

Do not pay immediately, but first, have the warning checked by a lawyer who is familiar with this area. He can determine whether the warning is justified and permissible at all.

But it is not only lawyers who send out warnings. Other commercial traders often try to scare off occasional sellers in this way and get rid of the competition.

If you have actually violated competition law, you must pay the warning. But here, too, an IP lawyer can help you and check whether the amount of the warning is justified.

7. Do not be afraid to go to a lawyer!

As a specialist lawyer for industrial property rights, I can assist you with my knowledge and experience if you are warned as a private seller on eBay.

First, it is essential to determine whether you are acting commercially at all in the legal sense. In warning letters, this is often claimed to be clear and irrefutable. As previously said, the case law in this area is very different, so the individual case must always be examined carefully.

The second point is that the amount of the warning costs is usually completely excessive. Here, too, it is advisable to act accordingly and check whether the claim - if justified - is reasonable or not.

Thirdly, it is susceptible that the issuance of a cease-and-desist declaration always accompanies a warning notice. This declaration, which is subject to a penalty, is legally effective for 30 years and can have severe consequences in the event of subsequent infringements.

A lawyer will advise you in detail about the possible consequences of a signature and explain alternatives.

Do not take a warning notice on eBay lightly, but do not let yourself be intimidated either. A consultation in my law firm will help you and is significantly cheaper than the usually demanded warning sums.

Do you have questions or do you want to schedule an appointment?

Make an appointment now!

image source: © photonphoto / panthermedia.net

Marco Bennek
I started working as a lawyer in 2006 and have been advising clients in competition and trademark law for more than 10 years. Since June 2015 I have been a specialist attorney for industrial property rights and since May 2013 a partner in the firm of HELMKE Attorneys at Law and Tax Advisors and Patent Attorneys. I studied law in Hamburg, Madrid, and Wellington (New Zealand) and hold a Master of Laws (LL.M.).
Rechtsanwalt Marco Bennek
Lawyer Marco Bennek – trademark law, copyright, competition law and IT law in Hamburg
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