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retail customers do not have Internet access "rent", ie, not third parties may purchase them . That means in any case, the OLG Köln (Az 6 U 223/08), the matter will probably be decided by the Supreme Court. The defendant took advantage of a flat rate Internet access to a third party has access to the Internet at Allowing 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 that is, without a license agreement. The right way, the provider I think both omission of all Involved, as well as damages, or the publication of a so-called enrichment claim.
www.anwalt-strieder.de (Solingen ud Leverkusen, advice and representation nationwide)

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selling pre-installed software: does it work?

Can actually a software that is preinstalled on a hard sell? The question can be determined with "yes" answer, if this is technically feasible, the legal rights instead been more "no". In practice, such a sale may well lie in the transfer of a backup. A ruling of the OLG Dusseldorf (Judgement of 26/06/2009, I-20 U 247/08) to this very vexed question of whether the so-called Exhaustion principle (by which one who has a product has been lawfully acquired in Europe, can they continue to sell well), even when such software attacks, which has installed a seller of hardware on the hardware, made a decision that will be certainly discussed among lawyers much. 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, said in summary that the principle of exhaustion only to property and ensure that such software can occur which 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 transfers all rights to the data carrier to the buyer and this is understandable and externally 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 be transferred only once. (Strieder, lawyers Solingen and Leverkusen, advice and representation on a National Level)

www.anwalt-strieder.de (Solingen, Leverkusen, advice and representation nationwide) www.fachanwalt -x-Informationstechnologierecht.de

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compensation for revocation? The ECJ (European Court) can help.

The European Court has on a template out of a German court made a decision that by now many blogs, newsletters, and essays haunts. 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, rather mild fail. 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 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, subsequently the current legal situation any 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? 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 his contract recant. In any case, it shall apply if the consumer uses the goods, even after the withdrawal, however, prove to the mail order company has. 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 more important things.

For most mail order companies, the decision also because of a practice change anything, because very few have called for the withdrawal of a small compensation amount from the consumer. 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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the false advertised: one advertising mail

A single promotional email to a company that obtained without consent, can be quite expensive. This had an advertising company learned that its advertising had sent to a law firm by e-mail and promptly received a warning. Ultimately, the court has given the attorney for the Legal Profession.
Even just a single, unsolicited commercial e-mail to an entrepreneur can be very hurtful. Even by such a delivery (or access) is the right of the principal in his trade or business (engaging in the so-called established and operative business) may hurt (BGH v. 20.5.2009, I ZR 218/07). Such
Unsolicited email 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 incurred as the Internet connection and e-mail delivery by the content and hosting provider. 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 in the opinion "in any form in the exercise of a trade, business, craft or Profession in order to promote the goal of the sale of goods or the provision of services. "This includes an e-mail, with one business is presented to a third party.
http://www.anwalt-strieder.de/ http://www.telefonrechtsrat.de/ http://www.fachanwalt-x-informationstechnologierecht.de/ http://www.internetrecht-leverkusen.de/

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illegal hacking tools and dual use: the whole story

Production , acquisition and dissemination of hacker tools is punishable under § 202 c StGB. The manager of a featured on IT security specialist company and a university teacher of computer science in the face these considerations 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 as a background process moves along, so to speak. 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, however, should be only of equal satisfaction. 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 and objective 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 use in the course of their legitimate professional activities as permitted, developed with the intent to use 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 prosecutors 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 be nice have been 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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The freeware error (BGH 20.5.2009, I ZR 239/06)

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.
presented in a case decided by the applicant Software and offered her a paid and a free light version on the Internet.
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, and therefore the defendant country. Although slight, but still. In copyright law, namely, is a very high level of care requirements, so that even slight negligence the allegation of a breach of duty of care founded. 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 handeltet and therefore negligent.
www.anwalt-strieder.de www.telefonrechtsrat.de

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Preisuchmaschinen need shipping costs

All online merchants should also contribute to price search advertising to 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 range of other goods or services in the way 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).

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activation state of Internet domains?

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 server name in the DENIC shall continue.
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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online advertising with CE and CCC test test: Anticompetitive

The LG Frankfurt, by order, 3.6.2009 Az: 0 81/09 3-08 decided that advertising with a CE test, and a CCC check anti-competitive is. 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: there


The advertised by the defendant on your online offer CE test does not exist. 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 of the product confirmed (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.


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 that are sold in the Chinese market. 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 traceable. However, the defendant suggested by the advertising claim "CCC-approved", that the institutions it to European customers products marketed to a particular subject for the European market applicable certification procedures, and grant them certification and a special quality and quality in line with European requirements by independent third parties bodies 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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What can I do good for them?

With Biederman this question is like to be as to some call center vendor in marketing calls to threaten to unsuspecting consumers with sales calls. The author himself had repeatedly against Call center employees resist that on the grounds that I have for lifetime irrevocable consent for telephone terror in some weiner terms, moreover, whose number.

Only a threat of legal action could induce E-Plus to stop the annoying nonsense on my business phone in the form of multiple daily calls stop. Otherwise a decision would be similar to LG Hamburg (Az: 315 O 358/08) and the LG Dresden (Az: 42 O 42/08 Hk) given that explained such Einmwilligungsklausel in terms invalid. Alleging infringement of legal terms. It was surprising clauses into the consumer unreasonable disadvantage.

is such a way Behave anti-competitively and could be reprimanded by the associations. A

those necessary legal consent is already irreversible.

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BGH for burden of proof 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 operator as spoilers or due to injury a road safety management is used. Basically the state competition because of a violation unused indirect interferences an impossibility or unreasonableness of the injury prevention and prove. In view of specific rules TDG in 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 matching competitors by inadmissible

, 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 the competitor had read changes in the database with a data matching and for its database used 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: guenstiger.de

a restraining order, after a certain domain may not be used, should be sufficiently specific, 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) to a mere violation of similar characters with the same quality can be on the other hand, the principles do not constitute the core 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 title of this post is misleading. Of course, it goes in this post for a television advertising athlete's foot. Such television advertising is not there, 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 determining whether advertising is misleading, are to take account of all its features including the special features of the communication medium. 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

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www.telefonrechtsrat.de The Trouble with the storage

favor of telecommunications (telecom) company, a resolution (Az: 27 A VG 331.08) in a Quickly (thus only temporarily) by the Administrative Court of Berlin is delivered, with the Administrative Court confirmed the that telecommunications companies can be penalized by the data retention, since it is not clear whether they are replaced the cost of 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. Therefore, telecommunications companies could suffer disadvantages if the question is not the size of the replacement cost for the storage clarified. www.anwalt-strieder.de www.telefonrechtrat.de

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Rolex vs Ebay: who bothers whom?

No nuisance liability for trademark infringement by eBay members. The Higher Regional Court of Dusseldorf ruled that eBay is not liable as spoilers if, after the notice of the injured proprietor eliminates the injury and no other injuries have occurred, would have the platform operator must prevent (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 requirement for extended check is not obvious or at least to me reasonable means unauthorized use, there are not identifiable, which was already decided recently by OLG Frankfurt. Once the verdict is on in full text, I will post it accordingly. www.anwalt-strieder.de

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reminder rate: why?

The question of whether the debtor incurred warnings also a man has to pay fee to make actually the least of debtors, creditors simply because the experienced a small amount as a so-called man fee add. This lump sum is, however, a widely felt before just right dar. Is the debtor defaults on the payment, but it must also be resulting damages to compensate. 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. emphasize

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subscription trap on the Internet I: Do you contract?

football players, it always happy, even publicly: you have the contract. And they want to keep to the rule to the same well. Many a respectable citizen with a generally low income than the above-cited professional body, only to find that he has contract, at least this is claimed by some companies. Here is an application to an Internet service over the Internet to a longer contract have led, so make up a small amount should be, to most people does not hurt really. To avoid a threatened lawsuit as a disadvantage, collection agency or worse, involvement of lawyers, pay, some people even though there was no contract. Whether the claim of such amount by the company in the IT legal sense, a criminal offense, is subject be another blog post. As a rule, namely, no contract comes into existence in such an undertaking, as the remuneration of colorful, noisy advertising gutversteckten and a reference to a binding contract and cost to the consumer is not obvious. This has been adopted for particular cases such as the Munich District Court (Case No.: 23695/06 161 C) and the Hamm AG (Document 17 C 62/08) and the LG Hanau (ref. 9 O 870/07) decided.

However, whether in individual cases, a contract was concluded, therefore, should be also paid, must be investigated at law, since the usual suspects on the Internet from the judgments in recent years have drawn their teachings. The problem that many of the offers on the Internet can only live on it, that they deceive unsuspecting consumers about the remuneration of the service, because no one pays a 24-month service for a completely nonsensical performance, nor to free from a variety of businesses and sellers on the Internet is provided, but can not eliminate evasion.

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

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ElektroG be advised and registered

for each dealer, offering imported goods in Germany itself, is threatened with the risk warning. Also the simple Ebay seller or Amazon sellers must register with the WEEE Register namely leave (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.

the way, dealers can also liable if they were not registered by manufacturers or importers ! Offer www.anwalt-strieder.de www.telefonrechtsrat.de

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Amazon Marketplace: Widerufsfristen like Ebay?

Whether it enjoys in the Amazon Marketplace the consumer a cooling-off period of 1 month or 2 weeks, is controversial for revocation, which 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 is in writing and be issued with 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.

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Gone!

This blog is now complete:)

Carry on bettiundralfunterwegs.blogspot.com .

you for reading!
Ralf