AVM Computersysteme Vertiebs GmbH” (AVM) v. “Cybits AG” looks like very interesting case. Plaintiff, the AVM, is using unfair competition law and trade mark law to enforce the copyright rights it has “lost” due to GPL licensing. Background of the case is here.
FSFE reports that AVM claims following:
The focus of the hearing, however, lay less on the area of Copyright but more on trademark and competition law issues. AVM doesn’t deny that the GNU GPL licensed software installed on the routers may be changed by the users, but maintains the opinion that no altered software may then be reinstalled on the routers. AVM relied on two main arguments:
AVM routers with the software changed by Cybits’ software might possibly reach third parties who would have no knowledge of the firmware changes and who may therefore attribute possible router functional changes to AVM even if they were actually caused by the software of Cybits. Therefore, the trademark rights of AVM were infringed. This also constituted an act of unfair competition.
To me, I can´t see any trade mark use by Cybits. Even if that would be the case, it should be reminded that protection beyond confusion is only present in case of reputed trade marks (art. 5(2) of TM directive). Also, if the contract allows you to do something, enforcing the very same on the basis of unfair competition law seems to be quite non-sense. But one never, know .. let´s see what the Distric Court of Berlin thinks of this.
Tags: copyright, trade mark, unfair competition, UWG