Warning of the warning: LHR obtains preliminary injunction due to misleading letter to software vendor
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At the request of Lampmann, Haberkamm & Rosenbaum Rechtsanwälte (LHR), the Regional Court of Hamburg (LG Hamburg, decision of 2 February 2016, case no. 312 O 35/16) has issued its third interim injunction against a software company.
This prohibits the latter from issuing warnings to software dealers in the course of business for competitive purposes due to alleged trademark and copyright infringements with reference to a court judgement, without mentioning that this is a judgement that is firstly based on (summary) interim injunction proceedings and secondly is not legally binding and is being challenged on appeal.
Failure to comply could result in a fine of up to € 250,000 or up to six months’ imprisonment. The decision is not final and was issued without an oral hearing.
The defendant now has the legal remedy of an objection or clarification of the facts in the main proceedings. This is already the third injunction that a court has issued against a software manufacturer for unfair competition against dealers of used software. We reported here and here.
The Hamburg Regional Court agreed with our client that it is misleading if an IP right holder sends a judgement of the Regional Court that is favourable to it to competitors without indicating that the defendant has appealed against this judgement. This is because a significant proportion of the addressees will gain the impression that this is a final decision (see Köhler/Bornkamm UWG § 5 para. 5.131 with reference to BGH GRUR 1995, 424 – Abnehmerverwarnung zu § 1 UWG aF).
Lawyer Arno Lampmann from the law firm LHR:
“The recent ruling by the Hamburg Regional Court shows that some software manufacturers are apparently prepared to use any means to intimidate retailers and prevent them from trading their products, like other goods, in the context of the free movement of goods. However, it is not only inadmissible to make inaccurate claims in licence conditions or advertising regarding the fungibility of ‘used software’, but also in letters containing the assertion of alleged injunctive relief.”
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(Image: © DragonImages – Fotolia.com)[:en]
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