Trademark infringement for webshop that allows PlayStation 5 pre-orders

You may not use the word and image marks of another party (such as PlayStation or PS5) on your webshop without permission, not even to allow product pre-orders. An entrepreneur who did this was convicted by the Amsterdam District Court for both trademark and copyright infringement. Furthermore, anyone conducting business through a sole proprietorship is liable with their private assets.

An entrepreneur offered the PlayStation 5 for sale via his webshop well before the console was on the market — without permission from Sony and without anything being known about the price or appearance. Sony alleged trademark infringement and took the matter to court (ECLI:NL:RBAMS:2020:6125).

What was going on?

The entrepreneur, running a one-man business, allowed people to pre-order the PS5 for 499 euros months before the release, even though the price had not yet been finalized. Nothing was known even about the design or the games; using the same platform, you could even order the (non-existent) GTA VI. He promised delivery on the release day, including 50 euros in PSN credit. Thanks in part to enlisted gaming influencers, orders poured in. When the site went down—according to the entrepreneur due to a DDoS attack—negative reviews rained down: no refunds, no delivery, and the consumer program #BOOS was called in.

Sony proposed a settlement

What the consumers did not know: Sony had already sent the entrepreneur a letter regarding infringement of his trademark rights and unfair trade practices. Sony holds various word and figurative trademarks (such as PlayStation and PS), both Benelux and EU trademarks, and had never given permission to use them. Sony demanded that the site be taken offline, that a statement of income be provided, and that a cease and desist declaration be signed. The entrepreneur took the site offline but ignored the rest. After a second cease and desist letter, he made a remarkable counter-proposal to collaborate *with* Sony; Sony declined this and proposed a settlement of 1,000 euros.

A hefty bill for the infringement

When payment was not forthcoming, Sony demanded in court an injunction against further infringements, a statement of all income, and reimbursement of legal costs (7,571.50 euros). The judge ruled that the entrepreneur had infringed Sony’s EU and Benelux trademarks, as well as copyright: he had used covers of games such as Gran Turismo and Ghost of Tsushima on his site. Although he had creatively adapted the PS4 covers into a “PS5 version,” the images were identical. The entrepreneur was ordered to pay the legal costs and provide a statement of income — with potential damages on top of that.

Four lessons from this case

• Use image and word marks for pre-orders only with the permission of the trademark holder.
• Running a webshop as a sole proprietorship entails personal liability with your private assets.
• Settling is sometimes more cost-effective than litigating.
• Influencers, too, must be careful about what they promote to avoid damage claims.

Frequently Asked Questions

May I use a well-known brand to offer pre-orders?

Not without the permission of the trademark holder. The use of the holder's word or figurative marks without permission may constitute trademark infringement, even in the case of pre-orders.

Am I personally liable with a sole proprietorship?

Yes. With a sole proprietorship, there is no separation between business and private; you are liable for debts and judgments with your private assets.

Am I allowed to use product images from a manufacturer?

Often not without permission: covers and images may be protected by copyright. Slightly modifying such an image does not make the use lawful.

Questions about trademark and copyright in your webshop?

The trademark and copyright specialists at MKB Juristen assess whether your webshop complies with the rules. Schedule a free intake consultation .