The European Court of Justice (ECJ) had to deal with the question of product liability of the so-called quasi-manufacturer. The following question was submitted to the court: Does the concept of manufacturer within the meaning of Art. 3(1) of Directive 85/374/EEC (implemented in Germany in Sec. 4(1) ProdHaftG) require that a person who has affixed his name, trademark or other distinctive sign to the product or has permitted it to be affixed also otherwise holds himself out as the manufacturer of the product?
The underlying case concerned liability for fire damage caused by a defective coffee machine. The coffee machine in question was manufactured in Romania with the indication "Made in Romania" by the Italian company Saeco, a subsidiary of the Dutch company Koninklijke Philips. The coffee machine and its packaging bore two trademarks, Saeco and Philips, both registered to Koninklijke Philips. The CE marking had the Saeco mark and an Italian address. The insurance company, which had reimbursed the consumer for the cost of the fire damage, sued the owner of the marks affixed to the coffee machine, Koninklijke Philips, for damages based on product liability.
The ECJ again referred to the wording of Art. 3(1) of Directive 85/374, according to which "any person who holds himself out as the producer by affixing his name, trade mark or other distinguishing sign to the product" is liable for the damage caused by a defective product. According to the clear wording, affixing the name or trademark is sufficient as an act giving rise to liability. Involvement in the manufacturing process in any way is precisely not required. On the contrary, the ECJ further stated from an evaluation point of view that by affixing the trademark, the impression is created that the trademark owner is involved in the manufacturing process or is responsible for it. In return for the fact that the so-called quasi-manufacturer uses its reputation to make the product more attractive, it must, on the other hand, also be liable for defects.
In addition, the term "manufacturer" is to be understood broadly for the protection of the consumer according to the intention of the Union legislator. No distinction is made between the person who (merely) affixes his trademark to the product and the person who actually manufactures or produces the product. The consumer does not have to search for the "most suitable" manufacturer, but can claim full compensation for his damage from any of them at his free choice.
Noteworthy in the ECJ's decision is the statement that joint and several liability applies even if other indications on the product suggest that the actual manufacturer is a different company than the trademark owner. In the underlying facts, it appeared quite possible to determine the actual manufacturer in light of the other information on the product. However, according to the ECJ, the consumer would not have to make this effort to distinguish.
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