Hamburg Regional Court dismissed the suit of a software vendor against the manufacturer of a tax consulting software without “box”. There were only offered the media and the serial number certificate in a new package chosen by the seller. The software maker took the view that this conduct constituted an infringement of trademark rights. Against the resale of the products under existing in trademark law principle of exhaustion (§ 24 Trademark Act) however, he had no objection in principle.
The manufacturer argued that he could oppose the marketing for legitimate reasons due to the change of the product by removing the packaging, and certain components of the “box”. Finally, the condition of the goods has been changed or impaired after they have placed on the market.
This looks like the Hamburg Regional Court otherwise. As the law firm Lampmann, Haberkamm & amp; Rosenbaum partnership that exists that has not yet published judgment (document number 408 HKO 41/14) since they represented the defendants in the case, now reported contradicts the judgment of this argument in his ruling clearly that the applicant has not submitted that the outer packaging of the software performs the function, the reputation of the product to increase compared to competing products.
According to the Court, however, the alteration or deterioration of the package leads in all cases to the exclusion of exhaustion, but only if assumes a risk to the reputation of the brand. In the present case, the changes have not reached the level that no longer has to tolerate a trademark owner for legitimate reasons.
As Arno Lampmann silicon.de explained in an interview with ITespresso sister site, the judgment can, however, not generalize. “Furthermore, if perhaps another argument of the plaintiff would have resulted in a different verdict, I can only speculate.”
However, Lampmann see the judgment such thing as a change of mentality in German courts involving: A few years ago the arguments of the utility software vendor had not been heard in such proceedings to trademark infringement. Before the ECJ ruling in 2012, courts have more or less automatically seen in the change in packaging a trademark violation. “I think in this case it is now surprising that this old paradigm is stripped,” said Lampmann.
The lawyer cites as examples the sale of perfumes or medicines, where the packaging is more important for the product and the brand. If this changes to the packaging to be made, imagine that a far greater engagement in the product is
It was important for this decision was also that the software companies that alleged the defendant forms of distribution -. So a stripped down version in “Frustration-Free Packaging” and entirely without packaging for download – offering beyond their own distribution channel for customers to choose from. The packaging of the software seems thus to play a minor role.
The revised equipment was not enough out to avoid the antitrust prohibition binding pricing policy emphasizes Lampmann. How Lampmann stated that the decision is not yet final because the plaintiff had gone to appeal. “The case is now before the Court of Appeal,” said Lampmann.
[With material by Martin Schindler, silicon.de]
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