LHR obtains second preliminary injunction against software manufacturer due to copyright-infringing clause in software terms of use

[:de]At the request of Lampmann, Haberkamm & Rosenbaum Rechtsanwälte (LHR), the Regional Court of Hamburg (LG Hamburg, decision of 4 January 2016, ref. 312 O 639/15) has issued the second interim injunction against a well-known software company.

This prohibits the latter from using the following general terms and conditions in licence agreements with German customers for software in the course of business for competitive purposes:

“(c) Multiple Licence. If you have purchased a Multiple License from xyz or one of its authorised distributors, xyz hereby grants you, subject to your compliance with this Agreement, a limited, personal, non-transferable, non-sublicensable, non-exclusive licence to: (…)”

if this is done as shown in Annex LHR 1.

In the event of non-compliance, a fine of up to € 250,000 or up to six months’ imprisonment may be imposed. The decision is not legally binding, but was issued without an oral hearing despite the fact that the defendant had filed a protective letter. The defendant now has the option of lodging an objection or clarifying the facts of the case in the main proceedings. This is already the second injunction that a court has issued due to inadmissible licence clauses. We reported.

The Hamburg Regional Court agreed with our client that the licence condition can only be understood by the target public to mean that the software in the form of multiple licences must be obtained from the manufacturer or an authorised dealer in order to be able to use it legally; and that it therefore 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.

The Hamburg Regional Court agreed with our client that the licence condition can only be understood by the target public to mean that the software in the form of multiple licences must be obtained from the manufacturer or an authorised dealer in order to be able to use it legally; and that it therefore 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.

Lawyer Arno Lampmann from the law firm LHR:

“The decision of the Hamburg Regional Court is now one of a considerable number of court rulings of this kind and is only logical in view of the European legal situation. Unfortunately, many software manufacturers do not want to recognise the clear requirements of the ECJ and even now, three years after the landmark decision, are still trying to circumvent them with – illegal – clauses in their licence conditions. It is important for software retailers to know that – as this decision shows – they can actively defend themselves against unlawful provisions.”

(la)

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