Ahoy there! Pirates going legit

The German Pirate Party has won 14 of the 130 available seats in the recent local parliament elections (see link). Normally the IPKat wouldn’t be reporting German elections, but the interest lies in the manifesto of the Pirate Party. These modern progressive Pirates are not interested in pillaging, plundering and keeping all the booty for themselves. Rather, they want everyone to share their ill-gotten profits: more Robin Hood than Long John Silver. Their manifesto is along the same lines as the UK Pirate Party, previously reported by the IPKat here and available here and includes the abolition of pharmaceutical patents and reduction of copyright protection to ten years. Ignoring whether the Pirate Party could make these changes (which would presumably require Germany to resign from a number of international treaties and organisations) how would Germany look if the Pirate Party gets its way?

Immediate thoughts are that no innovator pharmaceutical company would want to sell their products there, but of course this wouldn’t really matter to Germany because any generic company could set up shop and manufacture and sell their own versions. So the health of the population may not necessarily suffer, quite the reverse: the availability of cheap drugs could make Germany a go-to medical destination. Would pharmaceutical research departments and innovator companies move out of Germany? If they were still able to file for European Patents designated for other countries at the EPO then presumably there would be no mass exodus of R&D. Just a lot of healthy researchers filing GB etc designated patents.

Cultural life? Music, films and books are all easily transferred across the border on the internet and in print, so I don’t suppose the German people would lack for material being imported.

Gadgets, tools and machinery? Would Mercedes, Porsche and BMW continue to push the boundaries of automotive design and invention? The same logic as for pharmaceutical patents applies – companies could continue to be based in Germany (availing themselves of the cheap pharmaceuticals) and file non-DE designated EPs. In any event, the Pirate Party is not advocating the abolition of all patents, only threatening to roll back the “ever-growing tide of trivial, incomprehensible, overreaching patents”. They will do this by:

(1) “raising the bar on how innovative an idea has to be before it can be patented” [Merpel thought absolute novelty was already required…]
(2) “prohibiting patents on software, business methods, concepts, colours and smells.” [Good idea, says Merpel, but she is sure she’s seen rules like that before…]
(3) “We will require a working model to be provided to the patent office before a patent is granted” [Merpel thinks it will be a lucky business that wins the warehousing contract for the patent office]
(4) “we will strictly enforce the current rule that patents are invalid if they are "obvious to someone skilled in the art". [Merpel recommends revoking the patent]
(5) “We will allow more competition in the manufacture of patented devices by introducing a system of compulsory patent licensing, and we will provide exemptions to patent law for non-commercial use, personal study and academic research.” [Good idea, says Merpel, but she is sure she’s seen rules like that before…]

Interestingly, there is no talk of how the Pirate Party would handle infringement of IP rights - perhaps the easiest way to achieve their aims would be to disband the IP courts (come the revolution, the Dusseldorf court would surely be first up against the wall! See here)

So Germany might be a land of cheap generic drugs, counterfeit fashion goods, low quality electronic goods, familiar-looking restaurants serving food tasting not quite as anticipated…. hang on – I know a country like that! As China drags its IP laws and practice into the 21st century, Germany is on course to take its place.

We should note that the international Pirate Party is a moderate force in the world of anti-copyright activists, recently calling for members of Operation Payback to cease their attacks.

AVM, Cybits tussle over SurfSitter, GPL

Several (German) news sites (see here, here and here) report on a dispute between AVM Computersysteme Vertiebs GmbH and Cybits AG. AVM, it seems, has been trying to stop Cybits modifying AVM's Linux-based Fritzbox firmware (a DSL terminal). If this Kat has understood the dispute correctly, it appears that Cybits’s SurfSitter DSL filter software downloads AVM-produced Fritzbox software on to a user's computer, modifies the software and afterwards re-installs it on the AVM-produced Fritzbox. SurfSitter is a child protection software program.

What makes this dispute so interesting is that part of the AVM-produced and Cybits-modified software falls under the General Public License (GPL). AVM reportedly bases its claim on copyright, trade mark law as well as unfair competition law and appears to argue, inter alia, that it holds the copyright for the overall product (Gesamtwerk), which in AVM’s own view does not fall within the scope of the GPL.

This dispute dates back to 2010, when AVM had initially obtained an interim injunction to stop distribution of Cybits' software. This case has now moved forward to full trial with Harald Welte having joined Cybits' camp in the proceedings as “intervener” (Streihelfer). Harald Welte is behind gpl-violations.org and is, according to Heise.de’s report, also supported by the Free Software Foundation Europe. Welte, who owns the copyright in part of the Linux Kernel, which is included in AVM’s as well as Cybits products, argues that AVM’s effort to prevent third parties like Cybits from distributing modified firmware violates the GPL which allows any third party to modify, recompile, re-install and run modified versions of the respective GPL licensed program (copyleft).

A hearing in this case has now taken place at the Landgericht Berlin on 21 June 2011. For more information on this case, from the view point of the Free Software Foundation Europe, click here. To read Harald Welte’s blogpost summarising with information on this case, click here. Meanwhile, if any of our readers has a link to website that explains AVM's view of the case, can he or she please let the Kat know, so that the links are not too one-sided.

UPDATE: please click here to read AVM's comment on this case (in English). As always, many thanks to readers for their comments. Once the court has handed down a decision, the Kats will of course let you know.

Bundesgerichtshof on the "lawfulness of a press report"

The German Federal Supreme Court (Bundesgerichtshof) this week had to decide on the lawfulness of a press report about a book presentation by former news reader, journalist and author Eva Herrman (shown to the left), in particular whether this report was an infringement of Ms Herrman’s general personality right under the German constitution (case reference VI ZR 262/09 of 21 June 2011).

Eva Herrmann used to present the main news show Tagesschau on German television and is a somewhat controversial person with decisive views on various topics. While presenting her book “The Noah’s arc principle - why we have to save the family” (Das Prinzip Arche Noah - warum wir die Familie retten müssen) to journalists in 2007, Ms Herrman elaborated that traditional family values were again needed today, such as those that supported a higher regard for the role of the mother. Unfortunately, these family values had been abolished with the German student movement of 1968. She also referred to the Nazi time and said while most things had been dreadful during and Adolf Hitler had been a “totally crazy and highly dangerous politician”, the regard for families had been one of the very few good things during that time.

For those who are interested in what exactly Ms Herrman had to say, the Bundesgerichtshof’s press release includes a transcript of Ms Herrman’s actual comments as well as the wording of the press report (see here , in German).

The press report in dispute summarised Ms. Herrman’s various musings albeit in an ironic way, inter alia, referring to the fact that she was already married for the fourth time. The report also mentioned her comments on the Third Reich and ended with the words, that "thankfully" the book launch presentation ended after her comments on this topic. Ms Herrman objected to the report. She felt that its tone wrongly alluded that she was a supporter of the Nazi ideology. She further argued that the she was incorrectly quoted, which amounted to an infringement of her general personality right as protected under Articles 1(1) and 2(1) of the German constitution.

The lower courts, the Regional and Higher Regional Courts of Cologne, agreed with Ms. Herrman. The Bundesgerichtshof however agreed with the view of the defendants who had argued that Ms Herrman’s general personality right had not been infringed. In its press release of 21 June 2011 the Bundesgerichtshof clarified that the general personality right not only provides protection against being wrongly quoted (Fehlzitat), but also protects against other incorrect or falsified or distorted representations of statements. More particularly, the court stressed that the general personality right included the right to “one’s own word” and protected the individual from having statements attributed to them which have not made and which may compromise their self-defined claim to social respect (“selbst definierter sozialer Geltungsanspruch”). Upon a review of the press report in question, the court then found that Ms Herrman’s comments and theses had been correctly reflected as regards to the “choice of words, context, the thought process and general purport (Stoßrichtung)”.

The Bundesgerichtshof's press release can be found here (in German).

Merpel thinks that the court got it right and is pleased with this victory for free speech. This Kat however has some sympathy for Ms Herrman. Noone wants to be seen as having views that even remotely resemble those of the Nazi ideology and this Kat can understand why she took the matter to the courts to set the record straight.

Eminem vs Audi: Audi's ad "imported from Detroit"?

From Germany comes the news that US rapper Eminem is suing German car manufacturer Audi for allegedly using parts of Eminem's song "Lose Yourself" in an ad for the Audi A6 Avant car without the singer's permission. A spokesperson for Audi is quoted by German media as having said that the spot was only used "once" at the car's recent launch party in Berlin. Obviously this was once too often for Eminem's taste.

The spot in dispute is available on YouTube and you can have a look and listen by clicking here.

What appears to make the situation slightly more awkward for Audi is that a rather similar spot for US car maker Chrysler using "Lose Yourself" (with Eminem's permission) was recently shown during the US Super Bowl event. This ad is also available via YouTube and you can retrieve it by clicking here.


German website n-tv.de today cites a spokesperson for the Regional Court of Hamburg (Landgericht Hamburg) who confirmed that a law suit has been filed by Eminem's publisher Eight Mile Style (case reference 310 O 185/11). US website Billboard.com cites a spokesperson for Eight Mile Style who reportedly said that Audi's spot "actually feels inspired by elements of Chrysler's commercial campaign." According to the same report Eight Mile Style is seeking a cease and desist order with regard to use of Eminem's music as well as damages. Whether Chrysler is bringing its own claim has not been reported.

Merpel muses: with Chrysler's spot being so well-known, isn't it a trifle surprising that Audi just "imported from Detroit"?

Copyright infringing maps: "remove absolutely everything"

Several German websites report on an interesting case decided by the District Court of Munich (AG München, case reference 161 C 15642/09 of 31 March 2011). According to the court’s helpful press release of 26 April 2011 (please click here), the Munich court held that the use of a copyright protected map on a website without paying licensing fees to the claimant falls foul of Article 19a German Copyright Act.

By way of background: similar to Article 3 Copyright Directive, Article 19a German Copyright Act states as follows: ‘the right to make available to the public is the right of making a copyright work accessible to the public “on a wired or wireless basis” (in German: 'drahtgebunden oder drahtlos') in a way that members of the public may access the work from a place and at a time individually chosen by them’.

The claimant, an online map service provider, had objected to the defendant’s use of its copyrighted map on the defendant’s website since the defendant had not paid any licensing fees. The claimant had previously contacted the defendant and asked him to remove the map. The defendant had agreed and even paid damages to the claimant but while the defendant had deleted the direct link to his homepage, the map was nonetheless still available on the defendant’s server and could be found by third parties via Internet search engines. The court found that third parties still had access to the map in the sense of Article 19a German Copyright Act so that the defendant was liable for damages. Deleting the link from the defendant’s website in itself was not enough to prevent liability. The defendant had argued that he had removed the direct link and even had paid damages. He had not, however, known that he also had to delete the map from the server. The judge decided that the defendant’s behaviour amounted at least to negligence. The damages awarded amounted to fictitious licensing fees and the defendant also had to reimburse the costs for the cease and desist letters ('Abmahnungen') sent by the claimant’s lawyer.

Merpel is rather impressed with the court’s press release, which ends with an “excursion” explaining that unlawful use of third party copyright works can be 'very costly' and that in cases of infringement users should ensure that ‘absolutely everything has been removed’. Who says courts can’t explain things clearly?

ICE, ICE.... - the BGH and the citation of a design

Those of our readers that have been travelling by train in Germany may be familiar with the Intercity-Express or ICE high speed trains. The German Federal Supreme Court (Bundesgerichtshof) last week had to decide on a design right case relating to the depiction of an ICE type 3 (see left) train in a marketing brochure. On 7 April 2011 the Bundesgerichtshof held that depictions of designs are not permissible under § 40 (3) of the German Design Act (GeschMG) if they are merely used for advertising purposes (case reference I ZR 56/09). The claimant, Fraunhofer-Gesellschaft, had been seeking a declaratory judgement that German railway company Deutsche Bahn AG had no claims against it for having used photographs of ICE trains in an advertising brochure published by Fraunhofer-Gesellschaft. The relevant provision in the German Design Act § 40 (3) of the German Design Act (GeschMG) relating to the right of citation provides as follows: the rights conferred by a design right can not be exercised in respect of acts of reproduction for the purposes of making citations or for teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that the source is mentioned. By way of background: § 40 (3) GeschMG is shaped according to Article 13 (1)(c) of the Design Directive 98/71/EC and an equivalent provision can also be found in Article 20 (1) (c) of the Design Regulation (EC) 6/2002 as regards to Community Designs.

The Bundesgerichtshof took the view that § 40 (3) GeschMG required that there was a connection between the depicted design and the operations of Fraunhofer-Gesellschaft and that the photographs of the ICE trains that were used in the brochure had served as a quotation for statements made by Fraunhofer-Gesellschaft. Pure marketing however did not meet the requirements of a citation in the sense of § 40 (3) GeschMG. The information provided by the claimant in its brochure referred to the ICE train type 1 but a photograph of an ICE train type 3 was used. Consequently, the Bundesgerichtshof found that the depiction of the ICE train type 3 had only served marketing purposes and could not be seen as a permissible citation that served to illustrate the operations of the claimant.


The court’s press release relating to this case can be found here (in German). The moral of this story according to Merpel is rather more simplistic: use a photo of ICE type 1 when you are writing about ICE type 1. Use a photo of ICE type 3 when writing about ICE type 3, otherwise, do not try to invoke § 40 (3) GeschMG.

German Federal Patent Court decides in Neuschwanstein castle trade mark dispute

News in the trade mark dispute surrounding the German castle Neuschwanstein (see the IPKat's report here) .

By way of reminder: the Bavarian Castle Department (which is part of the Bavarian state government)has the task of regulating the souvenir trade connected to the famous Bavarian fairy tale castle and its surrounding area and registered the word mark "Neuschwanstein" in 2005. The German Federal Association Bundesverband Souvenir Geschenke Ehrenpreise e.V. (BSGE) - which describes itself as "a network of producers, wholesalers, exporters, retailers and trade representatives from the souvenir, sports clubs, trophy and festive items (industry)" - objected to this. Arguing that the Bavarian Castle Department's trade mark registration was akin to "censorship" of the Neuschwanstein souvenir trade, the BSGE filed for an invalidity of this mark at the DPMA. The DPMA (see IPKat report here) decided in the BSGE's favour and invalidated the mark, according to media reports, the DPMA found that "Neuschwanstein" was an "often used", non-distinctive term" and thus not capable to indicate trade origin of the goods and services marketed under the sign.

The German Federal Patent Court has now decided this matter and issued a press release confirming that it has upheld the DPMA's decision to cancel the "Neuschwanstein" trade mark. In its press release of 8 February 2011 concerning "Neuschwanstein" (case reference 25 W (pat) 182/09 of 4 February 2011) the court has provided the following information which this Kat has translated and summarised below.

The sign "Neuschwanstein“had been registered as a trade mark in 2005 for a multitude of goods and services. On 20 November 2007 the German Patent and Trademark Office decided on an invalidity application concerning this mark holding that the mark should be invalidated because it fell foul of § 8 (2) No. 1 German Trademarks Act (MarkenG) since it had lacked distinctiveness at the time of registration and still lacked distinctiveness now.

Upon appeal, the 25th Senate of the German Federal Patent Court upheld this decision and, inter alia, decided that the term "Neuschwanstein" described the castle Neuschwanstein which was commissioned by Kind Ludwig II in the municipality of Schwangau in the state of Bavaria with the castle being a world famous landmark of high (cultural-)historical importance.

As regards to services such as "travel services; catering/hospitality services and accommodation services", the term "Neuschwanstein" does not qualify for trade mark registration since the term could be seen as describing the characteristics of the services in the sense of § 8 (2) No. 2 MarkenG, that is their intended purpose or the geographical origin of rendering the services.

Designations of well-known tourist attractions such as "Neuschwanstein" furthermore lack the necessary distinctiveness under § 8 (2) No. 1 MarkenG concerning such goods that are usually offered in the proximity of such tourist destinations as souvenir articles or to satisfy the demands of tourist with regard to foods, drinks or further articles. This equally applies to services that are usually rendered and offered in a close proximity or in the context of such tourist attractions.

The court stressed that the term "Neuschwanstein" not only described a tourist sight but also a building that is a significant part of the national cultural heritage. The judges further held that designations of cultural sights that are of high importance and/or that are part of the national or international world cultural heritage are common property and as such cannot be monopolised or commercialised through trade mark laws. The court added that these sights usually are not distinctive enough for trade mark registration in the sense of § 8 (2) No. 1 MarkenG, even without a factual reference to claimed goods and services

Given that several aspects of this decision have fundamental importance, the Federal Patent Court allowed a further (partial) appeal to the German Federal Supreme Court (Bundesgerichtshof). On balance, this Kat believes that the court got it right but cannot help but thinking that the general idea of wanting to control the souvenir output surrounding the Neuschwanstein castle is not a bad one. How about having some kind of licensing committee when it comes to merchandise of such historical sights. Merpel, who likes her newly bought Neuschwanstein t-shirt (left), disagrees and thinks that this German Kat is nothing but a snob.... why not let the tourists decide what the want to spend their money on, rather than the Bavarian state?

Case reference : Bundespatentgericht, 25 W (pat) 182/09, delivered on 4 February 2011.

The court's press release can be found here.
The decision can already be retrieved in its entirety (German, PDF) by clicking here.