This is the Higher Regional Court of Düsseldorf decided with judgment of 24.04.2012 provisional order in a disposal method, in which two companies grappled over the term of a software that is included in satellite receivers.

 The manufacturer of satellite receivers, Dream Property GmbH, went through a preliminary injunction proceedings in May 2011 an action against the pan-European distributor of satellite receivers, Satco Europe GmbH, before, because the latter in its products, software, the term "Enigma" used. Dream Property had this name can be protected as a word mark with the European Trademark Office.

 While the district court still shared the view of Dream Property that through the use of the term "Enigma" there is a trade mark infringement, then the Düsseldorf Court of Appeal ruled in ruling that the alleged dream property not entitled to injunctive relief. The reason for this was the opinion of the Court, especially that Satco Europe the term "Enigma" in a legal manner is used as a working title of the corresponding software. Such use is permitted under Article 12 CTMR b. This rule states that a trademark owner to a third party may not prohibit the use of information on the nature and quality of the goods or services if they use them in accordance with honest practices in industrial or commercial matters. In simplified terms: if a piece of software so named as it is known for many years in the trade is, legally, even if there is a passing mark.

 In the present case was the use of "enigma2" to describe a particular program - and a working title. Satco Europe had both in the texts of his promotional flyer for the set-top boxes, as well as its online advertising pointed out that the offered units were equipped with a "Linux Enigma2 operating system". According to the court this information is to be understood as meaning that the Linux operating system with graphical user interface "enigma2" is part of the equipment offered the advertised receiver. The target public are expecting the word "Enigma" by name, the name of a computer program, and not one suggestive of a manufacturer's brand.

 In addition, the Court said that the topic of open source software.

 After the terms of the GPLv2, any software program, subject to the license conditions are complied with, in principle, be reproduced by anyone, distributed and used. In the present case, the Enigma software was licensed under the terms of GPLv2. May be so designated - Consequently, this program used in accordance with the terms of the GPLv2 license.

 In fact, it was now so that was based on the Linux operating system program not only Enigma of Satco Europe, but for more than six years by many other manufacturers used just under that name in commercial products. This fact has even dream property on his website made very clear by saying that they see it as recognition of their work that other speakers would use the software vendor Enigma.

 In this respect suggests the word "enigma" in the target public for a long time to come to a designation of an open-source software from different commercial origin - and thus just as the title of the software - and thus as a "working title".

 Also important is the opinion of the court that would exist even without a corresponding intimacy of intercourse with a long-standing use of the term has no legal violation by Satco Europe. For a standalone computer under a free license program in every way a work is similar, its copyright has expired. This means that if the use of the software from the outset on the basis of a free license (eg GPLv2) occurs, then there is for the user (in this case, for example, Satco Europe) the need to refer to the description of the work. This must be the opinion of the Court be possible to point to the actual name of the software. And because the software has now been used once described as the property of Dream Enigma, the legitimate user can call this free software as Enigma. Provided, however, that the license conditions were fully complied with the GPLv2.

 For all users of open source software at this point is also critical of the Court's assessment that even an adaptation of the software used on the particular hardware does not change the legal analysis would entail. Justification for this is that even the free use of the program requires an adjustment to different hardware platforms. But the creation of different controls and different functions a certain adaptation of the software make absolutely necessary. The relevant public would not view such changes as long as the court accept an agreement about the programs, such as the essential features are identical, and in particular offered by third-party plug-ins may find use. ''

 Regensburg, 05.16.2012
 paluka.de