Can Wish really say it’s “just the marketplace”?

If you buy something on Wish, who do you think you’re buying it from? The seller whose name you might struggle to find, or Wish, which sends the updates, takes care of payment and deals with your refund?

That question sits at the heart of a recent trade mark ruling from the Higher Regional Court of Hamburg. As reported by the IPKat, the court held Wish liable for infringement over counterfeit ghd hair straighteners sold on its platform. The judgment, case 5 U 58/25, was not yet published when the article appeared.

Jemella Group, the company behind ghd, had been trying to tackle the listings for some time. Between October 2019 and November 2021, it submitted 142 infringement notices through Wish’s own reporting system, carried out six test purchases and sent several warning letters.

The first-instance court found the defendants liable, but only under the German doctrine of Störerhaftung: broadly, for failing to take reasonable steps to stop infringements to which they had contributed. Jemella appealed, arguing that Wish’s responsibility went further. The appeal court agreed.

What mattered was how the platform actually worked. Sellers used pseudonyms, sometimes little more than strings of letters and numbers. Their identities were not disclosed, and shoppers had no direct way to contact them. Wish, on the other hand, was everywhere.

Order confirmations and updates came from Wish. Payments went to its Dutch subsidiary. The chatbot carried the Wish logo. The court also looked at shipping, fulfilment, returns, discounts and Wish’s rights over pricing.

Against that background, the judges found that Wish had adopted the offers as its own. They did not need to decide whether Wish was itself the seller.

The reasoning builds on the CJEU’s Louboutin decision. That case asks whether a reasonably observant user would connect the trade mark in a third-party listing with the platform’s own services. A shopper thinking that the platform itself sells the goods is one example. The Hamburg court did not read it as the only one.

There was also an awkward point about Wish’s authenticity programme. You might expect a scheme for verifying genuine branded goods to help a platform defend its approach to counterfeits. Here, it became part of the case against it.

The court treated the programme as evidence that Wish knew unverified offers were very likely to be counterfeit. Yet searching for “ghd” still brought up products advertised under that name, without limiting results to verified genuine goods. According to the report, there was not a single original ghd product in the results.

Then there was the price: €35 for a straightener that cost €262 as an original. That did not help Wish’s position.

None of this is a reason for platforms to abandon authenticity checks. But once those checks exist, there is an obvious question about what happens to the listings that do not pass them, or have not been checked at all.

Jemella also successfully challenged missing seller information, including names and understandable addresses. The court did not expect Wish to review every offer by hand. It did expect the platform to put basic safeguards in place, such as mandatory fields for seller details and matching requirements in its terms.

The ruling does not mean every marketplace is liable for every counterfeit offered by a third-party seller. On the reported facts, though, Wish was doing considerably more than providing space for someone else’s listing.

There is a commercial appeal in keeping customers inside one seamless, Wish-branded shopping experience. The difficulty comes when the platform then asks a court to treat the sale as entirely someone else’s business.