Counterfeit Products on Online Marketplaces: Claims against Temu, AliExpress, Wish and SHEIN
Your own products turn up on Temu, AliExpress, Wish, SHEIN or other online marketplaces, offered there at a fraction of the usual price. A test purchase then confirms the suspicion: the goods delivered are not originals but counterfeits. The actual seller is often based outside the European Union, operates only under a merchant name that is hard to attribute, or is practically unreachable.
In this situation, enforcement need not be confined to the individual merchant. Particularly where it is difficult to identify the merchant, to serve proceedings on it or to bring a claim against it in court, the operator of the online marketplace moves into the centre of attention. The legal options range from the removal of specifically reported listings, via more far-reaching duties to check and to refrain, to the platform’s own liability for the infringement of the intellectual property right.
The most recent case law reinforces this development. In its judgment of 27 August 2026 – 5 U 58/25, the Higher Regional Court (OLG) Hamburg held Wish directly liable for counterfeit products offered on the platform. A recent decision of the Regional Court (LG) Düsseldorf concerning AliExpress likewise shows that, under certain conditions, online marketplaces cannot confine themselves to pointing to the responsibility of the respective third-party sellers.
Immediate Measures, Short-Term Enforcement and a Structural Approach
Three levels can be distinguished when enforcing rights against an online marketplace:
Immediate measures
In the first step, the focus is regularly on getting the platform to remove the specific listings as quickly as possible. The following come into consideration in particular:
- reports via the platform’s IP or counterfeit procedures,
- a sufficiently specific notice under Art. 16 of the Digital Services Act (DSA) and
- in the case of safety-relevant counterfeits, an additional report to the competent market surveillance authorities.
Short-term legal enforcement
If the platform does not respond, responds only incompletely or further listings of the same kind appear, more far-reaching measures directly against the platform operator may become necessary. These include in particular:
- the demand that listings of the same kind also be removed and prevented from reappearing,
- a cease-and-desist letter from a lawyer,
- a preliminary injunction and
- where appropriate, claims for information to identify the seller or other parties in the supply chain.
Permanent and structural measures
In the case of systematic or recurring counterfeits, the aim may ultimately be not merely to remove individual listings but to stop distribution via the platform on a lasting basis. The following come into consideration in particular:
- actions for injunctive relief against the platform operator,
- where the platform is itself liable as an infringer, claims for damages as well,
- disclosure of information about sellers and distribution channels and
- supplementary measures against manufacturers, importers or suppliers and, where appropriate, involving the customs authorities.
Which level takes priority depends in particular on whether only a single listing is affected, whether further counterfeits appear after listings have been removed, and what role the platform itself plays in the presentation, distribution and processing of the listings.
Starting Point: Substantiating and Documenting the Product Counterfeit
Where a trade mark proprietor claims that the goods are counterfeit, they must regularly explain what specific indications lead them to that conclusion (“CONVERSE I”, Federal Court of Justice (BGH), judgment of 15 March 2012 – I ZR 52/10). This is appropriate in particular because the manufacturer is typically best placed to judge by which features its genuine products differ from counterfeits.
Possible indications include, for example:
- the serial number or batch code does not match,
- the material or workmanship differs from the original,
- security features are missing,
- the packaging does not correspond to the original packaging,
- components or structural features differ from the original production, or
- production codes do not originate from the manufacturer’s system.
The manufacturer must therefore be able to explain in a comprehensible and substantiated manner why it considers the goods to be counterfeit. Full proof of the counterfeit in court, by contrast, is not required for an initial report to the platform.
Particularly where action against the platform is a possibility, it should also be documented how the marketplace presents itself to the buyer: How clearly is the actual seller named? Who processes the payment? Who communicates with the customer? Who organises shipping and returns? What role does the platform logo play during the ordering process?
This documentation thus serves not only as proof of the counterfeit. It may at the same time be decisive for whether the platform is to be classified merely as a technical intermediary or as itself responsible for the listing.
True counterfeits must be distinguished from cases of parallel or grey-market distribution. Where the goods are in fact genuine, the rules on the exhaustion of intellectual property rights in particular may lead to a different legal assessment.
Trade Mark, Design and Other Intellectual Property Rights as the Basis for Action
In classic product counterfeiting cases, trade mark law is regularly the focus. Where a protected trade mark is used without the proprietor’s consent on the product, on its packaging or in the offer for sale, claims for injunctive relief and, where the conduct is culpable, for damages come into consideration in particular. § 14 of the Trade Mark Act (MarkenG) expressly also covers offering and placing goods on the market under the protected sign.
For an overview of the individual claims that can be enforced, see our article Trade Mark Infringement: Which Claims Trade Mark Proprietors Can Enforce.
Often, however, it does not stop at a trade mark infringement. Where the design of the product is protected, registered designs or EU designs may also be infringed. Copied product images, packaging designs, instruction manuals or, in some circumstances, the product design itself may give rise to copyright claims. Where protected technical solutions are taken over, patent or utility model rights may come into play as well.
For action against the platform, the precise identification of the infringed right is relevant because it is not only the claims against the actual merchant that follow from it. The conditions and scope of any responsibility of the marketplace operator may also depend on it.
Reporting the Counterfeit and the Platform’s Duties Once It Has Knowledge
Specific fake listings can first be reported through the IP or counterfeit procedures that online marketplaces provide (how this works in an individual case is shown by our article Trademark Infringement on Amazon). In addition, Art. 16 DSA obliges hosting services to set up a procedure for reports of illegal content. For the platform’s further legal responsibility, it is decisive in particular that the report is sufficiently specific and describes the infringement in a comprehensible way. Such a report may at the same time establish the platform’s knowledge, which is relevant for more far-reaching duties.
The responsibility cannot be limited to removing the specifically identified URL. In its decision “Manhattan Bridge” of 23 October 2024 – I ZR 112/23, the BGH extended the EU-law principles on platform liability to online marketplaces. After a sufficiently specific notice, the operator may be obliged, within the bounds of what is technically and economically reasonable, also to search for infringements of the same kind and to block or delete corresponding listings.
For recurring product counterfeits, it is therefore important to notify the platform not only of individual listings but, where possible, also of features by which listings of the same kind can be recognised. If corresponding listings continue to appear after such a report, this may become relevant for more far-reaching claims for injunctive relief against the platform operator.
Direct Action against the Operator of the Online Marketplace
Until now, a platform could, after a sufficiently specific notice, be obliged to act – even where it is itself neither the seller nor the infringer: to remove the listing complained of and, under certain conditions, also to take action against further infringements of the same kind.
More recent case law, above all the current decision of the OLG Hamburg on platform liability, goes a decisive step further: under certain conditions, the operator of the online marketplace is liable not merely for breach of such duties to check but itself as an infringer of the protected right concerned. The rights holder therefore does not have to limit themselves to pursuing the third-party seller, who is often hard to pin down, as the actual infringer. Instead, the platform itself can become the party against whom the claim is directed.
The advantage:
Where the platform is liable only because of a duty to check that arose after a notice, the core point is that, despite having knowledge, it did not take sufficient action against infringements by others. Liability therefore attaches to the conduct of the third-party sellers and to the platform’s subsequent reaction.
Where, by contrast, the platform is itself regarded as an infringer, the infringement of the protected right is attributed to it directly. It is then not merely under a duty to react to infringements by others but legally stands on the infringer’s side itself. In addition to claims for injunctive relief, claims for information and damages in particular may also come into consideration directly against the platform operator where the further conditions are met.
This development is of considerable importance particularly in the case of sellers who are based abroad, are hard to identify or are practically unreachable. The rights holder need not confine themselves to identifying the third-party seller concerned, serving documents on it abroad and only then enforcing their claims against it. A claim against the platform then does not depend on its having failed, in breach of duty, to act after a notice but is based on an infringement attributed to the platform itself.
When Does the Platform Itself Become the Infringer?
Liability as an infringer in its own right comes into consideration in particular where the marketplace’s role goes beyond the neutral provision of technical infrastructure and the listing can be attributed to the platform itself from the user’s point of view.
The EU-law foundation for this was developed by the Court of Justice of the EU (CJEU) in the joined cases “Louboutin/Amazon” – C-148/21 and C-184/21, judgment of 22 December 2022. According to that judgment, a platform operator can itself use a third party’s trade mark where a reasonably well-informed and reasonably observant user may gain the impression, owing to the way the listing is presented, that the sign forms part of the platform’s own commercial communication.
Of particular significance may be
- how clearly the actual third-party seller stands out to the buyer,
- whether the platform’s own listings and those of third parties are presented uniformly,
- what role the platform logo plays in the sales process,
- whether the platform influences prices or sales promotion measures,
- through whom payment and order processing take place,
- who organises shipping and returns and
- who takes care of customer communication and complaints.
The more the actual merchant recedes into the background behind a uniform presentation by the marketplace, the more readily the use of the protected right can be attributed to the platform itself.
Current German case law shows that this direct platform liability is gaining increasing practical importance. In its judgment of 27 August 2026 – 5 U 58/25, the OLG Hamburg held that Wish is liable not merely as a so-called “Störer” (indirect infringer) but itself as the direct perpetrator (“Täter”) of the trade mark infringement. What was decisive for the court was above all the platform’s appearance: the actual merchants were difficult to identify and often operated under pseudonyms that revealed little. Ordering, communication, delivery and returns, by contrast, ran largely through Wish or Wish companies. In addition, according to the contractual terms, Wish was apparently able to influence prices itself.
From the customers’ point of view, the listing thus appeared to be part of a uniform Wish shop rather than the offer of an independently operating third-party seller. It is precisely here that the particular significance of the decision lies: it is not only the merchant offering the counterfeit who comes into consideration as an infringer. Under the conditions assumed by the OLG, Wish itself can also be pursued directly for the trade mark infringement.
The more a marketplace pushes merchants and their identity into the background and itself appears as a seller or a uniform department store, the harder it becomes to fall back on the role of a neutral intermediary.
Legal Enforcement against the Platform
Where the platform operator may be held responsible, various options for legal enforcement are available, depending on the objective and the urgency.
Cease-and-Desist Letter and Demand for Injunctive Relief
Out of court, the platform can first be sent a cease-and-desist letter and called upon to refrain from the infringement. The subject matter may be both the specific listings complained of and – to the extent legally covered – further infringements of the same kind. A cease-and-desist letter is particularly appropriate where the platform has not responded, or has not responded sufficiently, despite a previous report. Where the platform operator is based abroad, a number of special points have to be borne in mind – for details see our article Sending a Cease-and-Desist Letter to a Foreign Company.
Preliminary Injunction
Where there is a particular interest in swiftly stopping further distribution – especially where the platform does not respond to the cease-and-desist letter – a preliminary injunction can be obtained. In this way, a court order to refrain can be secured at short notice without first having to wait for main proceedings to be concluded.
We also explain the details of the procedure in our article The Preliminary Injunction in Competition Law.
Action for Injunctive Relief
For a permanent judicial resolution, the platform operator can be sued for injunctive relief in main proceedings. This comes into consideration in particular where the platform’s responsibility is to be clarified as a matter of principle or where the form of distribution complained of is to be stopped permanently.
Disclosure of Information and Damages
Where the platform is itself liable as an infringer, further claims may come into consideration beyond the claim for injunctive relief. These include in particular claims for information and – where the further conditions are met – damages.
Disclosure of information may also be important independently of this, in order to identify the merchant behind a seller account, further parties in the supply chain or the extent of distribution.
Can the Platform Identify the Unknown Seller?
Even though the platform takes centre stage as the direct addressee of the claims, identifying the actual seller may remain relevant for claims for damages and for clarifying the supply chain.
The DSA contains specific requirements on the traceability of commercial traders. Online marketplaces through which consumers can conclude distance contracts with traders must, under Art. 30 DSA, collect various items of information about the trader before the trader begins selling, including as a rule name, address, telephone number and e-mail address as well as further identification and payment information.
However, this does not automatically give rise to a general right of the rights holder to the disclosure of all data.
More far-reaching claims for information can, however, arise from the infringed intellectual property rights. § 19 MarkenG provides, in cases of obvious trade mark infringement and under certain conditions, for claims for information also against persons who have provided, on a commercial scale, services that were used for the infringing activity. The information may include, among other things, the names and addresses of manufacturers, suppliers and points of sale as well as details of quantities and prices.
Comparable claims for information against third parties exist, among others, in design law and copyright law.
The platform can thus be not only the addressee of claims for removal and injunctive relief but at the same time open up access to the hitherto unknown seller and the supply chain behind it.
The fact that a seller is based outside the European Union therefore does not mean that there are no effective means against the distribution of counterfeit products on online marketplaces. Depending on the platform’s reaction and role, enforcement ranges from reporting an individual listing to directly pursuing the operator itself as an infringer.
Discovered a counterfeit of your products?
Where interim relief is concerned, every week counts – and whether the platform itself is liable alongside the merchant depends on details that an initial review can quickly clarify. Do you need legal advice in this matter?
Frequently Asked Questions
Do I have to sue the merchant first before I can take action against the platform?
No. If the platform does not respond after a sufficiently specific notice, or if it makes the listing its own through the way it presents itself on the market, it can be pursued directly and independently of the merchant.
What if I cannot identify the seller of the counterfeit at all?
That is no obstacle to action against the platform. In addition, there are claims for information against the platform itself, for example under § 19 MarkenG, by which the seller and the supply chain can be clarified.
How quickly must I act if I discover a counterfeit?
Promptly. Urgency is a prerequisite for a preliminary injunction – anyone who waits a long time after discovery risks being refused the urgent court measure.
