LHR obtains preliminary injunction against software manufacturer due to illegal ‘used software clause’ in general terms and conditions

[:de]At the request of Lampmann, Haberkamm & Rosenbaum Rechtsanwälte (LHR), the Regional Court of Hamburg (LG Hamburg, decision of 21 January 2015, case no. 312 O 5/15) issued an interim injunction prohibiting a software manufacturer from using the following general terms and conditions in licence agreements with German customers for software in the course of business for competitive purposes:

„You must obtain the software legally from us or our authorised dealers. Otherwise, you do not have the right to use the Software. You may only purchase or download software from the shop, eStore or website of xxx or the authorised reseller in the country in which you currently reside.“

In the event of infringement, a fine of up to € 250,000 or up to six months’ imprisonment may be imposed.

The decision was initially challenged by the software manufacturer by way of an objection, but was then recognised as the final ruling at the hearing on 24 March 2015 before the Hamburg Regional Court following clear instructions from the chamber. The decision is therefore final.

The Hamburg Regional Court agreed with our client that the licence condition violates the principle of exhaustion pursuant to Section 69 c No. 3 sentence 2 UrhG and unfairly hinders dealers of used software pursuant to Section 4 No. 10 UWG and must therefore be refrained from.

This is based on the decision of the ECJ of 3 July 2012, case no. C-128/11, which has attracted a lot of attention in software trading circles.

Lawyer Arno Lampmann from the law firm LHR:

“Against the background of the European legal situation, the decision of the Hamburg Regional Court is only logical. Often, there is not even any malice behind this type of clause, but merely an unwillingness or inability to carefully translate the original US clauses and adapt them to European jurisdiction. As long as such negligence can be exploited to one’s own advantage, the motivation to rectify the situation is extremely low. It is therefore all the more important to take legal action against this.”

(la)

(Bild: Weiß Rot Abgerundete Moderne Software-Paketbox mit DVD © Denis Semenchenko – Fotolia.com)[:]