Oh dear, some peaople just need fraud to make money.
They mostly are not able to develope something on themselves, an try to get their money off the people who design products for years, free of charges and for the commonwealth of GPL users...
I don't know anything about your program - just got through an golem.de article to your sites (link was mentioned in the comments.
The people who get these noticed should simply ignore it ... nothing more.
I'am not a lawyer too, but the writing is worth nothing - because such notices only can be sent through real lawyers.
Nobody else can send out such notices ...
Let me know if I can help you anyway.
Christoph (link) - 17 08 06 - 07:07
Oh, Avery, this is a typical german problem.
We have some lawyer agencies telling people to register some trademarks or word marks, for only one, BAD EVIL purpose. Usually it's the aunt of the lawyer or the mother in law, or anyone else linked by personal relations (and money) to this lawyer. These people don't have obvious connections because theier adress and last names are differnt, but in fact they're relatives or big friends.
Later the mark owner is using this law agency for pursuing the 'misuse of word mark'. But for gods sake there are some customer rights protection organisations who fight aganist such ripping.
The problem is that this is an laywer ./. individual thing, and if a lawyer issues 1000 letters claiming 500-1000 euros each letter this could be declared by courts as a misuse of law, and after that these agencies don't get their fees. And these fees are based on a fictional value claimed by the law agencies, and it is chosen ridiculous high to maximize the fees.
Later , in lawsuit it mostly happens that this value is decreased and so the fees of the lawyer which is based on a percentage will get down too. There are a lot of afraid people who don't know anything else than to pay the lawyers bill.
Some years ago there was a word mark Explorer, registered by a one man company, and finally this mark was deleted because no product was distributed for over 10 years. But lot of people who linked to programs like 'ftp explorer' or anything else that contains the word explorer got letters from this lawyer von Gravenreuth. Actually his agency companion Syndikus has to face a lawsuit for running a moviez site named ftpworld.com....
There are some ways to fight this directly in a lawsuit:
1) for an individual:
There's no evidence given by the mark owner that there's a product out there with his name. At that point the lawsuit will be mostly closed. But they are doing this game with the next inncoent.
2.) in general:
the word mark entry can be declared as invalid (if the mark owner doesn't use it), but this has a price of some houndreds of Euro. If you don't have a friend in germany who can register this mark on his own there's no way to get out of it.
andy - 17 08 06 - 08:57
I heard from this case on golem (a german newsticker).
The folks from the newsticker asked two lawyers how someone should react if he/she receives such a mail from the "word mark" owner.
You can read their valuation here: http://www.golem.de/0608/47222.html
unfortunately it is in german and my english isn't good enough to translate everything of it - but summarized it goes like this:
Everybody can/should ignore those stupid mails, sent by the "word mark"-owner - it's a cheap trick to scam some cash out of afraid people. Because your ComputerProgram is out on the streets way longer than his word mark registration, his registration is useless - names of ComputerPrograms are automatically protected if they were used in public before the registration of any other trademark with the same name.
coma - 17 08 06 - 10:44
It is not a good advice to ignore such noticed - IANAL either but even the "mentioned golem.de":http://www.golem.de/0608/47217.html
article suggests to consult a lawyer and could help stop this misbehaviour. The notice is pretty "worthless nonetheless":http://golem.de/0608/47222.html.
Björn Graf - 17 08 06 - 10:50
This is something you should post about in Slashdot. I considered posting it myself, but on second thought decided that the Slashdot effect might take your site down and so I decided just noting it here and letting you decide for yourself.
Blight - 17 08 06 - 11:23
Too late, somebody posted it already. I hope your site lasts.
Slashdot Is Here (link) - 17 08 06 - 12:12
More power to you. I really hope you squash this guy. Its idiots like this that make me hate the world. >:| Good luck!
Ryan - 17 08 06 - 12:13
You've been Slashdotted. Best of luck, with this matter and with the Slashdot effect!
Rob T Firefly (link) - 17 08 06 - 12:14
I wouldn't worry too much. The thing is its a word mark in germany, you reside in the US, your software which I use a great deal is hosted in the US. Basically the only people this fraudster can really go after are people in Germany. You could quite easily copyright your work in the US. I think it works like that. Hence why major corporation register their trademarks in the all the countries they do business in, other countries trademarks don't apply. Now don't quote me on this, cause I could certainly be wrong.
Chris (link) - 17 08 06 - 12:49
As coma already pointed out, there's no need to worry for you. Sooner or later Mr. Kliemen (the guy that holds the rights to that word mark) will have to get those rights granted in court, because one of his recipients refuses to pay him those royalties. In that process he'll eventually lose his right to the word mark. And you don't even have to do a thing.
F-3582 - 17 08 06 - 13:00
Durr... it was Björn Graf who posted the golem.de article... My fault.
F-3582 - 17 08 06 - 13:02
I read somewhere that the time where people who have the rights to the word mark can complain has not yet passed. Maybe you should get a lawyer and sue the hell out of him. Im going to submit this to digg now.
Jan Schejbal (link) - 17 08 06 - 13:59
Jan Schejbal (link) - 17 08 06 - 14:07
Heise has an article about it (http://www.heise.de/newsticker/meldung/7..
) (onyl German, too). They quote a specialized lawyer, who says that (a) pretty much everybody can request deletion of the mark at the registry, that it's (b) highly likely that this is an illicit claim, (c) that you are likely to have some kind of implicit mark protection ("Werktitelschutz") already, and that (d) everybody who links to your site and gets extorted can even file a countersuit with a good chance of success. Also, the first link in the artice goes straight to virtualdub.org, and the Heise publishing company really isn't known for ducking out of a legal fight.
The guy doesn't even have a lawyer to handle the stuff, he's just asking for an arbitrary amount of money. IANAL, but all that doesn't really make me fear for the future of the real VirtualDub.
Nicos - 18 08 06 - 08:58
I'd like to suggest you to contact the doom9 network; in the doom9 forums you will surely find support about this issue, several members there will know both german and international law good enough to suggest you further actions.
Explicitly allowing again anyone in general to link to your website and software seems to be a good start, according to the latest thoughts discussed in the german doom9/Gleitz board. We also collect there ideas for first-time reactions from those who already received a letter (but of course, they are not "legal advices").
LigH (link) - 18 08 06 - 09:03
In a German Computer Magazins Web-Site is a comment posted about this case, giving some clarification.
This is in German, but I will try to translate it for all to understand how to handle this primitive fraud attemp.
news 18.08.2006 14:11 heise on-line
Warnings of world mark missuse because of Link on Virtual Dub homepage
The Video Software Virtual Dub enjoys of large popularity. Many Website operators link on their side to the homepage of the open SOURCE project. Some received exactly therefore these days a warning from the enterprise “Internet services Kliemen”. Its boss Raimar Kliemen has itself with the German patent and office for mark recently the word mark “Virtualdub” secured and pounds now on the exclusive rights of use at the term.
Its warnings are send by Internet Agency from its alleged “Subsiedery 2” in the tcheschischen Karlovy Vary. “You offer a xyz.de computer program under the page for the Download, which has my protected label name”, communicates it the Webmastern. The alleged right violator is to deliver an omission explanation as well as to transfer “payment of damages/royalty” at a value of 160 euro. For reasons of the “cost minimizing” he did it without the agency of an attorney in the thing, writes Kliemen in the warnings. “With a value in litigation of 50.000 euro” for the receiver then “still substantial costs would have arisen”.
On demand the fraud trademark owner avowed of heise on-line to make well-known disturb it that “large web pages” used its label name, in order a competition product: “Imagine, someone linked on its side the name Coca Cola to the web page of Pepsi,the responsible persons of Coca Cola will get nuts.” Its product is “a program, with which one cannot only cut and work on videos, but into almost any format to convert can”.
The 160 euro are “only the representational allowance, which is entitled to everyone, which writes a warning”, so stated Kliemen without further explanation. Against the data in the warning do not concern it around demanded payment of damages or royalties. In the meantime it can understand, why different trademark owners of attorneys for the protection of their rights to assign. These “knew the back free and on the cash transaction to concentrate.”
The attorney Martin Jaschinski from the citizens of Berlin Kanzlei JBB of attorneys, specialized in trademark law, said on request of heise on-line, it is nearly obvious the fact that it concerns a “bad-willing Name Registry in such a way specified” here. Therefore everyone can place a request for deletion of the word mark from the DPMA register with prospect for success with the DPMA. Besides the manufacturer of the software “Virtual Dub” posesses in all probability for right of the software name also in Germany as a “work title protection”, which is older and thus more highly priorisiert. If this applys, is unproblematic a linking on its Website, if allowed by the manufacturer.
“The receivers of such warnings should back-lean relaxed. However it is not to be excluded that the trademark owner obtains other case into or first a provisional order. If it meets on resistance, it will however in the long term have no success with its mesh most likely. Who wants to become rather active, can also reakt with counter Warnings and menace of a negative declaratory action to react”, described Jaschinski. Completely unclearly is also, which can have resulted to damage from the linking of the Virtual Dub homepage. From the send warning this nannot be deducted. Rather work the validly made damage as completely “from air seized”. (hob/c't)
This was a automatic translation by a Internet Software.
So I see it the following way.
a) The Owner of the Real Virtual-Dub Progrum must interveen at the German Patent Agency and claim its international rights on the name. Normaly no name alredy used by an enterprise can be registered. So it's a fault of the German Patent Agency to have permitted the registration.
b) DONT PAY ANY MONEY when recieving the Warning Letters. Just write a letter answering accusing the sender of obvious fraud and telling him that tha case has been given to attorney. And that you won't pay anything until a German curt has descided its legitimacy on the name.
c) Everybody in Germany that has the problem schoud write a letter to the german patent agency claiming it for wrongly registering Product names and obviously helping people to be frauded. Here is the address of the DPMA (German Patent agency and Trade Marks)
I Encurage all people to make a maximum pressure on this Agency because they are not aware of what they have been doing lately. This is not the first time obviously stupid registries were made.
Lets terminate this frauder at once.
Olaf S. - 18 08 06 - 09:05
Help is on the way....i only need to check a few things....
For everybody...DONT PAY FOR IT....if you have recieved a letter from this company in germany.
George (link) - 18 08 06 - 11:10
I am from Germany too and feel sorry! This man is an idiot! (sorry: it's my opinion!) But don't worry, this letter has no consequence.
You can read it here (german only)
Thank you for your perfect program!
replicator_ - 18 08 06 - 11:19
You can probably contact also Czech Linux Users Group, if the trademark owner has Czech residence. The address is vybor AT linux.cz.
Frodo - 18 08 06 - 16:44
The address in the czech republic is fake. The street does not exist, not even the zip code is correct, the first two digits are swapped. The city of carlovy vary doesn’t know about such a company.
Also, the owner of the domain has used a fake address, the true owner of that address doesn’t know a Michael Kliemen.
The impressum of the former page http://www.kliemen.de
itself was missing, which is actually a reason for a competitor to send an Abmahnung over a few hundred euros, the page is down now. One guy said his lawyer said: “If we sued every idiot demanding money like that, we wouldn’t be taken serious anymore with real things”.
Alexander Noé (link) - 19 08 06 - 05:19
Another news from Germany: Lawblog.de writes that it could turn out fatal to simply ignore the claim, because courts are bound to acknowledge the existance of the trade mark as long as it exists, and it would be needed to delete the trade mark before a claim can be considered void.
I can't translate the article here because it's all legalese, but interested and/or concerned German readers will find it here: http://www.lawblog.de/index.php/archives..
mastermind (link) - 19 08 06 - 07:11
hi Avery, sorry this happened to you man. I would contact http://www.eff.org
& let them know what is happening. I would also update your software, so the German version clearly states on install WHAT IS HAPPENING and to ignore such letters. This person, if taken to court, should be sued for every penny they have. It is an injustice, but no judge will fine someone for misusing your valuable work. That greed will be stopped by the German courts.
You may want to set up an LLC (limited liability corporation) & use Paypal donations to fund it. Only, so you can retain the rights of Trademark & no one can misuse your software for these purposes anywhere.
Josh Gumbert (link) - 20 08 06 - 17:07
Note that the domain "kliemen.de" and the mark are registered to different people. To get an address of the mark owner, go to https://dpinfo.dpma.de/protect/mar.html
and search for the "Aktenzeichen" 30601877.2
That yields the following personal data:
Google Earth finds something for that address (49°24'58.29"N / 8°16'18.05"E), but there's no entry in the phone directory matching the name.
A. Nonymous - 21 08 06 - 07:09
to shed some light on what happened, this is the list of wares that the mark was registered for (translation follows below):
Klasse 38: Bereitstellen von Internetzugängen (Software); Nachrichten- und Bildübermittlung mittels Computer
Klasse 42: Aktualisieren von Computer-Software, Design von Computer-Software, Bereitstellung von Computerprogrammen in Datennetzen, Erstellung von Computeranimationen
class 38: Providing internet access (software); Message and image transmission by computer
class 42: Updating computer software, computer software design, providing computer software on data networks, creation of computer animations
There is a quite balanced assesment of the situation on lawblog.de at
Translation [stuff in brackets added by myself]:
17. 8 .2006
Virtualdub: Premature "all-clear"?
By Dominik Boecker
MarkenBlog tells us under "VIRTUALDUB - younger mark vs. elder software title" of warnings with respect to the word mark VIRTUALDUB filed january 16, 2006 and granted may 31, 2006.
Is this the next warning avalanche?
Golem delivers the assessment of two lawyers. As a result, lawyers should call for an "all-clear" since software may fall under the working title protection of §5 MarkenG [the german marks law] and there has been a well-known program to record and modify videos under an identical name for years. This elder priority right could be cited against the newly granted mark since the distinctiveness of the mark rights is on the same level (mark, business relation, working title etc.).
On the other hand, I pose the question who has a right to this possibly saving working title protection.
The commentary Ingerl/Rohnke in any case is being incorrectly cited in the warning. Correctly, it should reference §5, Rdn. 97:
If a work is being created by one or a small number of authors, then these authers will generally be entitled to this right. If it is a work that has developed through cooperation of many participants under a uniform leadership, the rights to this title will often be conferred to the owner of this leadership, e.g. the publisher, the film production studio or the software company.
The well-known GPL software 'VirtualDub' seems to be a project solely of Avery Lee.
What does result from this concerning a defense against the warning? Can any of those warned raise an objection due to an opposing right of a third party?
Concerning this, one further quotation from Ingerl/Rohnke:
The infringer [of the mark] basically can not oppose elder rights of other proprietors to the plaintiff since these unfold their higher-ranking powers only towards their proprietors, as is clarified by the rule concerning the allowance to file suit in §55, 2.2 MarkenG.
Avery Lee seems to be the only developer of this software, so the work title rights are his alone; a third party can not claim these rights without his permission.
What to do? One possible way would be Avery Lee permitting his work title rights to be used for linking to his websites and programs. One problem with this is certainly the great number of people who would have to be permitted this use. If the approach works should be verified and can finally only be decided in court.
An opposition following §42 MarkenG probably would not succeed even though the mark is still in the three month opposition phase, since one can only oppose from certain older rights (§42, 2.1-3 MarkenG).
[these rights are:
§42 (2) 1. a filed or granted mark with older time rank §9 (1), 1 or 2
§42 (2) 2. a notorious (well-known) mark with older time rank §10 and §9 (1), 1 or 2
§42 (2) 3. a filing for an agent or representative of the mark owner §11
One possible way would be a plea of nullity after §50 MarkenG citing a filing in bad faith. This would create a safe situation since the mark would be cancelled and erased from the mark registry. Filing in bad faith seems provable to me.
So the situation is not as risk-free and simple for those concerned as it may seem at first glance. A court of law is bound by the mark registration even if it has been done in bad faith. The reader is reminded of the multitude of "Explorer" cases which have cost lots people lots of money. I can imagine that also in this case (sadly) Virtualdub will cost a lot of money for people who only linked to the homepage of Avery Lee.
One cannot claim an "all clear" right now.
Dominik Boecker is a lawyer in Köln.
end of translation.
If something is unclear in the translation or you have questions concerning german marks law, do not hesitate to contact me.
I have been using VirtualDub for many years now and am quite sad to see that its name is being misused in this way. I do sincerely hope this issue will resolve without too much collateral damage.
Standard disclaimer: IANAL, my translation may be incorrect.
J. Pierau - 21 08 06 - 10:54
There is an update on Golem contradicting lawblog's position:
Update august 18, 2006, 16h20:
In the meantime there have been different views on the dangers of the warning scam. Lawyer Robert Rogge, however, disagrees: "In lawblog my colleague Boecker states that the working title protection only applies to the creator of the program, Avery Lee. As a solution, a statement from Avery Lee is suggested allowing third parties to use his working title rights to link to his websites and program. From our point of view, this permission has already been given through the use of the GNU-GPL which governs use of the program. This license (also) expressly permits the distribution of the program."
So far, so good. As always: 2 lawyers, 3 opinions ;)
J. Pierau - 21 08 06 - 11:16
your program is beautiful and very powerful. Do not let it become spoiled by a german guy, who wants to make some profit with your work.
As some others already mentioned, there are 611 comments on the article released at the german news agency heise ( http://www.heise.de/newsticker/foren/go...
). All of them support you and your work.
Greetings from Germany
Hakan Önel - 21 08 06 - 11:32
I have written to the DPMA (www.dpma.de) (German Patent and Mark registration agency) and they wrote back telling me that to annulate the Trade Marc registry it's necessary to fill out a dedicated form (Dok.-Nr.W 7442/10.04) which can be found on their web-page (http://www.dpma.de/formulare/marke.html
) and pay 300,-- Euros.
I will try to write to the German computer magazine asking them for help and may be to create a community collect and to pay this fee.
The Idea is to convince the magazine to create a kind of financial fond to pay the annulation of such illicit registration marcs, violating thus the rights of the GPL and other forms of free software.
I will also try to contact the "German Consumer Association" (Verbraucherzentrale) and ask for legal help on the case.
Every one in Germany who got a letter asking for illicit payment becaus of any Trademark violation on "VirtualDub" can and should contact them and ask for legal help.
They also have an english Web Site: http://www.vzbv.de/start/index.php?page=..
I will inform in this forum about any new information coming in.
Thanks for everybody helping here.
Olaf S. - 22 08 06 - 10:03
Jürgen, your tranlation seems to be pretty correct. Thank you very much!
I - as a Mac user - heard of your program for the first time when i read about the warning letters in the newsticker golem. In the update at golem they cited two lawyers from berlin. I had and still do have the impression that they implicitly stated, that everything will come out fine, because you (personally) have better rights than the owner of the registered trademark (no doubts about this point). (only) this aspect (who has the better rights and can claim these with GPL in the background) was the reason for my contribution to the lawblog. This is a very interesting legal question.
Though i still question this aspect of the case (just because of professional curiosity), i do believe conclusion of the colleagues on golem ist right and evereything will sort out fine in the end. The (for a lawyer interesting) question is: on which way will this case be solved?
Greetings from cologne
Dominik Boecker - 22 08 06 - 15:29
The easiest way would surely be to sue him to death, but in Germany this can take years, and i also read that the so called company of this guy is registered in czech republik which makes it even more difficult to get to him... Why don´t you register another mark like virtualdubb or something so the suckers is left with nothing...German laws are somewhat strange...
Maybe the community should flood his email-box with nice comments on his doings...
Hunne - 28 08 06 - 15:58
Ignore that. As long you stay in personal and business in the US nothing can happen to you.
NickSteiner - 28 09 06 - 20:47