Stealing a Homepage = Unfair Competition?

When copying and pasting the style and contents of web presentation for business purposes, will often be subject to claims arising from copyright law. But what if copyright law does not give grounds, will unfair competition successfully step in? The judgment of LG Cologne gave an answer to this question on July 20, 2007 (re 28 0 798/04).

For the protectability of a language work, both its kind and its scope will be relevant. If the material is a work of language totally fictional, then it attains copyright protection more often than such texts, where the material is pre-determined by organizational purposes or scientific and other topics, because here professionalese often lacks the imprinting typical for copyright protection.

Disregarding any protectability by copyright law, the copying of texts and advertising graphics can violate rules on fair competition law. The “competition law” aims at protecting competitors, consumers, and other participants in the market against unfair competition. Besides that, this law protects the general public’s interest in a genuine competition (§1 UWG).

Under competition rules, a web page can show a peculiarity protectable against imitation. Such peculiarity will be then assumed, when the concrete design or certain characteristics of the product virtually point to its origin, i.e. from a certain company. The function of this (unwritten) rule of the law is to protect against imitation that which is worthy of protection in relation to the interests of competitors, consumers, and general public. As a rule of the thumb, you can consider it illegal to slavish imitation.

It is considered as unfair competition, when you literally copy and paste the text with all pictures and styles and make no changes what so ever. However, it is under all laws legal to be inspired by a previous creation. The lesser the similarity the lesser any violation of unfair competition law.

What is the result of an act of unfair competition? The competitor has the right to demand elimination and in cases of danger of repetition forbearance for the future, and eventually damages (§8 UWG). N.B. §12 II UWG assumes ex lege that an infringement raises the danger of repetition. This means two things: You cannot just excuse yourself with an argument like: “It was exclusively for this my only one website. It was only a one-timer.” This legal assumption will usually only then be removed with a written declaration of cease and desist. When being admonished, you will be demanded to submit such declaration of cease and desist.



Published on the old CMS: 2007/12/5
Read on the old CMS till November 2008: 146 reads

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