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DSL connection "Rent"? From an interesting business model

private clients access to the Internet "Rent", so do not ask third parties to purchase them. Commercial course not. That means in any case, the OLG Köln (Az 6 U 223/08), the matter probably from BGH decided. The defendant took advantage of a flat rate Internet access to a third party has access to the Internet to enable certain course against a payment. The Court of Appeal said that this right from the phone, respectively DSL contract is not covered. I can only join in. The access provider provides (at least) is primarily a service to its customers. The fee model is uniquely adapted to a private use, so that all may use if family members to the locations of the DSL line as appointed amongst these. Third is a right of use, and therefore not accessible to the technically provided internet access allows. They use the technical facilities of the provider so without a license agreement. The right way, the provider I think both omission by all parties, as well as damages, or the publication of a so-called enrichment claim.
http://www.anwalt-strieder.de/ (Solingen ud Leverkusen, advice and representation nationwide)

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exhaustion principle and used software in preinstalled software

A ruling of the OLG Dusseldorf (Judgement of 26/06/2009, I-20 U 247/08) has accesses to the much debated question of whether the principle of exhaustion (after which the one that a product has been lawfully acquired in Europe, is able to continue to sell them) even with such software that has installed a seller of hardware on the hardware, a decision made and is certainly much discussion among lawyers. It held that the exhaustion principle in such software is not effective, and only if this software with the hardware on which it is installed, will be passed. A solid backup to disk so can not be shared. Background, summary said that the principle of exhaustion can occur only on items and ensure that such software that is purchased on a physical media, such as a CD. Background is certainly enough to ensure only the delivery of the physical disk that the Seller all rights to the data carrier to the buyer passes and this externally traceable through the transfer will be. It is often argued that the transfer of the disk often remains an illegal copy or install the software on the computer of the seller that this may also use. The fact that a seller who passes a work, copies thereof may retain, in violation of copyright law, but nothing special. Photographs, this is certainly possible, as in software. The possibility of duplication when delivering the hardware on which the software is installed, however, limited. The original hardware may eventually only be transferred once. (Strieder, lawyers Solingen and Leverkusen, advice and representation on a National Level) www.anwalt
-strieder.de www.fachanwalt-x-Informationstechnologierecht.de

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Court to pay compensation for revocation

The European Court has on a template out of a German court made a decision that now haunts many blogs, newsletters, and essays. Somewhat simplified, the Court of Justice (Judgement of 03.09.2009, Case C-489/07) a template of a German court on the question of whether it is compatible with a European directive, and enforce the consumer the cancellation of a distance business in returning the goods for compensation to be decided. The European Court has answered the question with the half-full and half empty water glass. So far, only the half-empty water glass to read the disaster for the online retailer, which result from this decision is. The "shock of the transit trade," which propagated after the decision in part is likely, however, be rather mild. Taking the "half-full glass of water" of the decision, then the decision is to be understood as that compensation can be made still vorgeltend when the consumer gets a wide distance contract and returning the goods. Compensation not only lapses when this out of proportion to the purchase price is or if the compensation for the use or test or the real property is up to the date of withdrawal. This means that a mere, the standard compensation is not for the possession of the goods by the revocation may be invoked. The latter is just my opinion, nothing new. Who returns a packaged product, in which he did not use, also according to previous legal no compensation payable for the use.

It should but give a point of contention. Paid by the consumer for the proper utilization and effective use of acquisition until the date of cancellation, no compensation for the use? About This can be after the decision of the ECJ in fact take no final assessment. The Court said that compensation (among others) according to the principles of unjust enrichment is worth serious consideration. In my view, this applies to the case that the consumer goods not only takes into use as intended, but also uses, and then revoke his contract. In any case, this would apply if the consumer goods even after the withdrawal used to prove the mail order but must. Pending clarification of the mail order company should go, however, in its cancellation on "safe". I think it should be included in a revocation in each case that the intended putting into use of not to pay compensation out. As to whether the intended use after putting out on compensation, judicial or legislative decisions will have to wait.

it is hoped, however, that the legislature has other priorities.

For most mail order companies, the decision should therefore also a practice to change anything, because very few have called for the withdrawal of a small amount from the fourth spare consumers. I am certainly not one known case, calculated in the case of a withdrawal properly exercised within two weeks or a month of mail-order companies such compensation or would have argued. For sales on the progress and, if Amazon or similar sales platforms such compensation was intended for the putting out of the question anyway.

www.anwalt-strieder.de www.telefonrechtsrat.de

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Court to pay compensation for revocation

The European Court has on a template of a German Court even made a decision that now haunts many blogs, newsletters, and essays. Somewhat simplified, the Court of Justice (Judgement of 03.09.2009, Case C-489/07) a template of a German court on the question of whether it is compatible with a European directive, the consumer of the withdrawal of a distance business in returning the goods for compensation decided to enforce. The European Court has answered the question with the half-full and half empty water glass. So far, only the half-empty water glass to read the disaster for the online retailer, which result from this decision is. The "shock of the transit trade," which propagated after the decision in part is likely, however, be rather mild. Taking the "half-full glass of water" of the decision, then the decision is to be understood that compensation can be made still vorgeltend when the consumer gets a wide distance contract and returning the goods. Compensation is not only if it out of proportion the purchase price is or if the compensation for the use or test or the real property is up to the date of withdrawal. This means that a mere, the standard compensation is not for the possession of the goods by the revocation may be invoked. The latter is just my opinion, nothing new. Who returns a packaged product, which he did not use, also according to previous legal no compensation payable for the use.

But it should be a point of contention. Paid by the consumer for the proper utilization and effective use of acquisition until the date of cancellation, no compensation for the use? Over here can be determined by the decision of the ECJ in fact make no final assessment. The Court said that compensation (among others) according to the principles of unjust enrichment is worth serious consideration. In my view, this applies to the case that the consumer goods not only takes into use as intended, but also uses, and then revoke his contract. In any case, this would apply if the consumer goods even after the withdrawal uses, which must prove, however, the mail order company. Pending clarification of the mail order company should go, however, in its cancellation on "safe". I think that in a revocation be taken at the time each case that the intended putting into use of not to pay compensation out. As to whether the intended use after putting out on compensation, judicial or legislative decisions will have to wait.

it is hoped, however, that the legislature has better things to do.

For most mail order companies, the decision is also likely why change anything in practice, because very few have called for the withdrawal of a small compensation amount from the consumer. I am certainly not one known case in which a properly exercised would withdraw within two weeks or a month of mail order companies charge such compensation or asserted. For sales on Ebay and, if Amazon or similar sales platforms such compensation was intended for the putting out of the question anyway.

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chopped off too much Mailed

Even a single, unsolicited commercial e-mail to an entrepreneur can be very hurtful. Even by such a delivery (or access) is the law of the company at its commercial operation (intervention in the so-called established and operative business) may hurt (BGH v. 20.5.2009, I ZR 218/07).
Such unsolicited e-mail advertising in general disturbs the operational activities of the company. this is in fact charged with sifting and sorting out of advertising and e-mails, for which an additional advertising cost arises. In addition, in principle, will also create additional costs huierdruch, for example, Internet connection and e-mail delivery by the content and host provider incurred. E-mail advertising is cheap, fast and automated to send a large scale. Without advertising has a restriction on the e-mail advertising to the high court with a strong proliferation of this type are expected.
advertising is the verdict "promote any form in the exercise of a trade, business, craft or profession with a view to the sale of goods or the provision of services." This includes an e-mail, with one business is presented to a third party.
www.anwalt strieder.de-www.telefonrechtsrat.de www. www.fachanwalt-x-informationstechnologierecht.de

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When the dual-user? The decision of the Constitutional Court v. 05.18.2009 hacking tools

The production, acquisition and dissemination of hacker tools is punishable under § 202 c StGB. The manager of an IT security specialist company and a university teacher of computer science presented in the face of this fact the question of how they can practice their profession at all if in the use of hacking tools, their profession brings have to the prosecutor moves along, so to speak as a background process. Next, they put this matter to the Constitutional Court. In Solomonic fashion, the Federal Constitutional Court, the Board has not even accepted (BvergE, BeckRS 2009, 35 013). This both complainants should only halves be satisfied. The Federal Constitutional Court of First Instance said that the rule on hacker tools software includes only those developed with the intention of using them to commit crimes. It must be, the Federal Constitutional Court, this intention objectively manifested themselves. The mere suitability of programs for criminal purposes is not enough. It covers so no dual-use tools that can be used both to commit crimes as well as for legitimate purposes. That this is due basically to the complaint, both individuals had not presented.

The two complainants have now half full or half empty glass. Whether software they in the course of their legitimate professional activities as permitted use, was developed with the intention of using them to commit crimes, can hardly be excluded in any case. As a rule, should just such a software for the operator of an enterprise IT security be particularly interesting. Hackers are often more creative than their own employees, often subject to these hackers, but also any German criminal violence. Since virtually every hacker software even for legitimate purposes, namely to promote IT security can be used, probably with consistent application of the decision of the Federal Constitutional Court, drain the provisions of § 202 c StGB substantially. All experience with a public prosecutor and criminal courts, it does not. There remains the courts and the lawyers left to resolve in practice, which is a dual tool, and when and how far the intention to use crime has manifested objectively. It would have been nice if the Federal Constitutional Court would have at least the issue of dual-use tool being taken closer position. This alone would have been within the meaning of the German IT specialists, for their German company law does not require restriction and security fears.

www.anwalt-strieder.de www.telefonrechtsrat.de

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software copyright: error on Freeware (BGH 20.5.2009, I ZR 239/06)

If a software program to download the Internet sets, must accurately determine whether the author of the program has actually released for public access. In the case decided
put forth the applicant software and offered a paid and a free light version of the web.
By a mistake had hired a professor of FH the full version of the software on the UNI-FTP server. Down Load The appeal was a surprising success for all sides. The software manufacturer felt that she was injured and damages made against the land claims that employed the professor, but does assume some fault.
The Supreme Court has decided: the professor's fault. Although slight, but still. In copyright law Namely, a very high level of care requirements, so that even slight negligence founded the allegation of breach of duty of care. This is especially so, the court, if a computer program to download will be available online. For this, the exploitation rights of the software manufacturer particularly threatened, because such, provided for downloading, software can be verfeilfältigt at any time by a considerable bulk of people.
is irrelevant that there was no evidence that it is the software provided did not constitute the freeware version. That fact should have been examined exactly what the professor did not negligent and therefore handeltet.
www.anwalt-strieder.de www.telefonrechtsrat.de

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Preisuchmaschinen Returns must specify

All online merchants should also advertising on price search engines ensure that the shipping cost is listed near the purchase price.

The court said that the consumer can see at a glance must be whether the quoted price includes shipping. The price is an important contract information that determines, among other things also the rank of the collection.

According to § 1 paragraph II PreisAngVO, anyone who regularly or commercial end-users in any other manner of goods or services in the area of contracts offered, identify clear that the required sales tax and other non-price components included, and whether incurred other costs (delivery costs and delivery charges).

absence of this information is represented in the price search engines effectively. But this one Wettbewrebsverstoß faces Mitbwerbern dar. (BGH, Judgement of 16.7.2009, Case No.: I ZR 140/07).

www.anwalt-strieder.de www.telefonrechtsrat.de www.fachanwalt-x-informationstechnologierecht.de

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activation of an Internet domain?

comes in the consulting practice in recent times back to the question, whether a domain can be activated under the new trade law, or even must, even if it is not acquired as an object of others. After saying mutual status of the jurisdiction must be: no. This might change in future, so that a certain caution.
An Internet domain would be to activate if it is, a mark or a similar customer lists, asset. The Court of BFH and the Federal Constitutional Court is to be assumed that the holder of a domain is only obtained an obligatory legal claim to the DENIC to use an IP address for a particular domain. Further rights, in particular a right to a name or trademark similar Right he does not receive.
also Bundesfinanzhof says that a domain an intellectual property law is at best similar. This is the BFH concludes that there is only a right kind of debt, according to the DENIC on payment of fees for registration of the domain and the corresponding data in the name server has to maintain the DENIC.
likely a result of an activation domain is not possible and not be required. It is not a property right, but is an intellectual property law so that a similar activation of prohibition, as with an original brand, it is likely.
As I said, it is important to observe that in the following.
www.anwalt-strieder.de www.telefonrechtsrat.de

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advertising with CE test: anti-competitive

The LG Frankfurt, by order, 3.6.2009 Az: 0 81/09 3-08 decided that advertising with a CE exam and a CCC is anti-competitive examination. The case decided was the particular feature that details of the alleged test CE and CCC-examination in the online offering of the defendant were in direct relation to particular qualities of the advertised goods.

The decision I think is right:

The advertised by the defendant on your online service CE test is not there. The CE mark within the meaning of § 6 indicated GPSG is neither a security nor a particular quality of the product, but is a mere assertion of the manufacturer dar. The name of the product as a CE-approved suggests the advertiser, however, have an independent body, the Product Safety confirmed the product (LG Stendal, Judgement of 13.11.2008; Az: 31 O 50/08). In this way, consumers will be misled, as he says in such advertising that the product of its type and design as well as the method of preparation for a special, neutral testing a special quality management is subject to, and only such goods are sold to him, the one by a Third party audited and certified quality standards subject. It is therefore a breach of § 5, 5 a) IV UWG.

The same applies to the advertising of the property "CCC-tested". The CCC certification mark (CCC = China Compulsory Certification, mandatory certification in China) is a mandatory safety and quality for products in the Chinese market be distributed. Such a mark is neither relevant for the European market, nor are its requirements or its acquisition by third parties on the European market verifiable and / or understandable. However, suggested the defendant by the advertising claim "CCC-approved", that of their European customers at the goods distributed a special, for the European market applicable certification procedures apply, and grant them certification and a special quality and quality in line with European requirements by a neutral third party sites is confirmed.

Such an advertisement is created in both cases, a likelihood of confusion with the European GS-Mark, that is actually tailored to meet the European market and awarded by a neutral third after a test procedure.

http://www.anwalt-strieder.de/ http://www.telefonrechtsrat.de/ http://www.fachanwalt-x-informationstechnologierecht.de/

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BGH: burden of proof in liability of the platform operator

In a recent decision (BGH v. 10.4.2008, I ZR 227/05 AZ), the Supreme Court opinion on the question of burden of proof taken in the event that the platform operators taken as troublemakers or because of the breach of a duty to maintain safety in claim is. Basically the state competition because of a violation unused indirect interferences an impossibility or unreasonableness of the injury prevention and prove. Given any particular provisions in TDG, this is the platform operator differently. Must cite the inability of these violations are found positive, thus proving the alleged victim. However, the platform operator to react to a corresponding statement extensive and explain why the statements of the injury are wrong (so-called secondary burden of proof). www.anwalt-strieder.de

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database vendor reconciliation prohibits by rival

, a database manufacturer may require omission of a competitor, if it uses the database to a comparison of data with its competitor. In the case decided was the competitor changes to the database with a Synchronization is read and used for its database to update the data. The Supreme Court has prohibited this and the competitors for infringing the copyright of the database producer to refrain convicted. Already a single collection of all changed data refer by creating a cached list of changes to a qualitatively substantial part of the database (BGH 30.04.2009, I ZR 191/05). The extraction of an insubstantial part of a database may incidentally be allowed. www.anwalt-strieder.de www.telefonrechtsrat.de

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typosquatting, cybersquatting, and the injunction

a restraining order, after a certain Domain may not be used, must be worded in such a concrete way that the course of conduct is to be derived from this clear. It is true that nuclear activities are basically includes the same injury, which is recognized in trademark law (so-called core theory). This principle may be restricted by law in the domain, however, since even the slightest change could lead to the domain name to the injury. This was decided by the Court of Appeals Hbg Vertippertdomains to so-called, in this case "guenstiger.de". "An extension of the occasion of specific infringing mark (" gübstiger.de "and" günstigert.de ") adopted prohibition (emphasis added by the Senate) with similar signs to only same violation quality can not explain, however, on the principles of nuclear theory. Otherwise, legal prohibitions were identified at risk to be shapeless and could not meet its primary purpose, to ensure legal certainty. (OLG Hamburg v. 08.01.2009, Az: 5 W 1 / 09). Suction. same nuclear rights violations are usually at the mere Vertipperdomain not seen since the character structure of these domains of the signs of injury on the nature and extent domain may differ materially.

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television advertising for athlete's foot: The infringement?

The title of this post is misleading. Of course, it goes in this post to television advertising for athlete's foot. Such television advertising is not what the average reader and TV viewer is known. Whether the Internet there are groups in the acquisition and preservation of such a disease experience internal benefits, the author is unknown. In an interesting decision of the BGH vom 11.9.2008, Az: I ZR 58/06, it was rather the question of whether admissible in a TV advertisement, a written notice can be displayed, if not excluded that also blind spectators or those who listen only but no look, perceive the spot and be fooled by the statement noting the absence of written instructions. This is not a misleading advertising. In In assessing whether an advertisement is misleading, of all its features including the features of the communication medium to be considered. Television advertising is, as the average consumer is known in principle from image and sound. The viewer expects it so that, where appropriate, information will be displayed. The failure to request the applicant has withdrawn therefore lawful conduct of the advertiser and therefore went too far. www.anwalt-strieder.de www.telefonrechtsrat.de

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The Trouble with the storage

favor of telecommunications (telecom) companies is a decision (Case No.: VG 27 A 331.08) very quickly (so only provisionally) issued by the Administrative Court of Berlin, which upheld the Administrative Court that telecommunications companies can be penalized by the data retention, since it is not clear whether to pay the costs be replaced for storage in an appropriate manner. In the grounds, the Court stated, in the design of a telecommunications compensation law, which will cost the company only after specific inquiry will be reimbursed by security forces, but not the expenses for the establishment and operation of the storage systems. It went to the urgent decision that is just about the costs for the Implementation of data storage.

A final decision on the legality of data retention is not yet available. www.anwalt-strieder.de , www.telefonrechtsrat.de www.it-quite-fachanwalt.eu

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vs. Ebay. Rolex: OLG Dusseldorf to nuisance liability

No nuisance liability for trademark infringement by eBay members. The Higher Regional Court of Dusseldorf ruled that eBay is not liable as spoilers when it removed after the notice of the injured trademark owner the violation and no other injuries have occurred that would have prevented the platform operator (OLG Dusseldorf v. 24.2.2009, Case No.: I-20 U 204/02). There was therefore no pre-screening requirement. Also represent the Higher Regional Court stated that: "Ebay lock now using a filter program offers, the brand name used clearly inadmissible, it is not the Internet provider reasonable to examine any offer before publication in the internet for a possible violation of law, because such a duty the whole. business model into question. " That is, concrete is finally little by the obligations of the platform operator. It believes it is the Court of Appeals that is also no extended Testing requirements in the case are not obvious or at least to me reasonable means not detectable improper use of what was already decided recently by OLG Frankfurt. Once the verdict is on in full text, I will post it accordingly. www.anwalt-strieder.de www.telefonrechtsrat.de

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reminder rate: why?

The question of whether the debtor incurred warnings also a man has to pay fee, normally prevail few debtors, creditors attach simply because the experienced a small amount as a so-called man expenses. This lump sum is, however, a widely felt before just right dar. Is the debtor defaults on the payment, but also must compensate for the resulting damage. Worked by the creditor is however usually not included here. That a creditor's debt is entered, the normal business risk. Further damage can not be a lump sum of the creditor, but must stop this specific, as costs for postage, stationery and an envelope. Otherwise it may be, if a contractual, effective basis was agreed for a Mahnpauschale between creditors and debtors.

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sraping screen and virtual property

mediated a company plane tickets, the data is in the so-called "screen-scraping", or available web rather-scarping (a method to retrieve data automatically target), obtained on the website of the airline company, so this is v. after the OLG Frankfurt ( 5.3.2009, 6 U 221/08) is legally open to criticism.

There is no violation of the right in a database (§ 87b) of third parties. Therefore, it does not matter that the third company, so in that case, a flight company deplores this distribution channel.

also a violation of the "virtual property" of the airline company on its website is not provided. Such virtual property exist on Interntseiten or probably more likely to transmit the access to a server, the data-not. This should precisely be visited by others and could i.Ü. would technically blocked for such access.

The decision regarding the virtual environment is just right in my opinion a problem if the third party who reads information from the website that will show up as an interrogation tool there, access is forbidden. After all, the airline would, however, may subject to the Terms of a scheme to meet this. A technical blocking the access is usually ineffective, because it can be easily circumvented.

www.anwalt-strieder.de www.telefonrechtsrat.de

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warning for lack of Regstrierung ElktroG?

for each dealer, offering imported goods in Germany itself, is threatened with the risk of a warning. Also the simple Ebay seller or Amazon sellers must in fact register the electronic equipment can register (for details see www.stiftung-ear.de). Thus, at the Electrical and Electronic Equipment. Competitors may admonish otherwise. This is among lawyers controversial, the Dusseldorf Higher Regional Court was now compelled to join one or the other. In two decisions it comes to the Solomon Islands Result: not mentioned at all: anti-competitive; registered but not quite right: no anti-competitive. A competitive advantage only, who saves by the lack of records of money and effort. In Electrical and Electronic Equipment regulations that affect only the type of registration is irrelevant to competition law.

Whether this is true even if the goods from the EC countries is imported, sold in the importing country is already a manufacturer who is also registered in the exporting country according to local regulations, in my opinion very doubtful. In this case, in my legal opinion would be the requirement that a product is not 2 as defined by the manufacturer may have ElektroG, injured, when even the importer would have to register. I stay on topic and will post a decision here.

the way, dealers can also liable if they offer goods of non-registered manufacturers and importers! www.anwalt-strieder.de www.telefonrechtsrat.de

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Amazon Marketplace: cooling-off period for consumer 2 weeks?

Whether it enjoys in the Amazon Marketplace the consumer a cooling-off period of 1 month or 2 weeks, is controversial for the revocation, the the dealer must give, but not entirely insignificant. The LG Berlin (published in the MMR) says: 2 weeks. Amazon (Marketplace) regularly to the revocation in writing to the consumer to go before or at the conclusion of the contract. Also goes to the district court assumed that a revocation in writing is also provided in the contract, if they erfoglt with the acceptance, such as email attachments. What is important in this decision and that the Court of the Amazon terms of the relationship between buyer and seller will not apply, not general market rules which produces what is often cited in Ebay shops. Like other courts, decide this remains to be seen. The Berlin spared in any case a lot of work with preliminary injunctions against retailer Amazon.