The District Court in Dusseldorf has found that an advertizing slogan with the phrase “Dead Dot Walking?” represents legitimate publicity. The slogan refers to the Content Management System (CMS) RedDot, previously taken over by Open Text Software GmbH. Open Text, a leading provider of business software in the Enterprise Content Management sector, introduced a preliminary injunction against the slogan’s author, AOE media GmbH, which has now been struck down in this latest verdict. AOE media is a leading service provider in the field of Open Source Web Content Management based on TYPO3.
The offending item: The slogan referred to an ongoing discussion among branch insiders on the future of the RedDot CMS, particularly in the context of the RedDot takeover by Open Text occurring in addition to their takeover of the CMS manufacturer Vignette. The growing uncertainty with regard to a future release strategy was emphasized by AOE media with the following question: “Quo vadis, RedDot?” Open Text saw this as a breach of the law on unfair competition, insisting that AOE media had publicly disparaged Open Text with an unfounded claim that RedDot would not be further developed.
Although AOE media had made it clear in the contentious advert that they did not themselves have an answer to the initial question, they did however draw attention to the opinions current among industry professionals, while at the same time maintaining that the Open Source CMS TYPO3 offered a future-proof alternative to licensed solutions.
The Dusseldorf District Court saw no grounds for the claim of unfair business practice by Open Text, dismissing it with the reasoning that the offending question (“Quo vadis, RedDot?”) tended rather, in the Summer of 2010, to highlight the considerable importance to the sector of the RedDot takeover by Open Text. In addition, the court found that Open Text had not been sufficiently transparent with regard to laying out their market strategy for the future of the CMS and that there was, as a result, already some uncertainty over RedDot’s further development. This uncertainty was fuelling discussion within the branch, even before AOE media published the disputed advert.
“The verdict is good news for us, of course”, said AOE media CEO Kian T. Gould, “although we would have preferred Open Text to settle the matter amicably out of court, rather than resort to unnecessary litigation to make life harder for the competition.”
Dr. Hajo Rauschhofer, an attorney who specializes in IT law, explains further: “In the light of this competition law verdict, we are now assured that is perfectly legitimate to make use of opportunities presented by market rumor and discussions within the branch. With regard to some even more provocative forms of publicity, we note that the Federal Supreme Court recently judged such measures as legitimate within the context of the fundamental freedom of opinion that is guaranteed in advertizing and competition law.”
Below you can find the original (German) text of the verdict as a PDF.
Attorneys for AOE media GmbH:
Rauschhofer Rechtsanwälte
RA Dr. Hajo Rauschhofer, FA IT-Recht
Richard Wagner-Str. 1, 65193 Wiesbaden
Tel.: 0611/5325395, Fax: 0611/5325396
E-Mail: kanzlei@rechtsanwalt.de
www.rechtsanwalt.de
The Rauschhofer law office consults and represents in matters of IT and Internet law throughout Germany. Dr. Rauschhofer has practiced law since 1996 and is a recognized expert in IT litigation.
About AOE media:
AOE media is a leading provider for Open Source-based Portal development, Web Content Management and e-Commerce. This system house with its headquarters in Wiesbaden, Germany, has handled hundreds of implementations for major global names, such as Cisco Systems, Deutsche Telekom or Panasonic. Since its founding in 1999, AOE media has developed from one of the earliest TYPO3 service-providers into an acknowledged specialist for integrated Web-Business solutions, all the while staying true to its principle of only working with leading Open Source technologies. Free software is an essential part of the company philosophy and a key motivator for its more than 80 staffers. As one of Germany's fastest growing technology companies, AOE media took 2nd place at this year’s Deloitte Technology Fast 50 Award: Within the last five years, AOE media grew by a stunning 2,673%.
