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The legal sale of used software

User agreements must be adhered to - in many cases they prohibit the resale of software.

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LHR – We ensure that the sale of “used” software is legally secure

The market for “used” software is a thorn in the side of prominent software manufacturers such as Oracle, Microsoft, Kaspersky, Corel, etc. This market is gaining in ever-increasing relevance. Today more than ever before, companies are having to update, adapt and expand their software to meet workflow requirements and compliance regulations while also satisfying data protection provisions.

It is very expensive to constantly purchase new software from the manufacturer. Software does not “wear out” in the traditional sense; there are also countless instances in which “used” software is no longer needed, for example in cases of restructuring, mergers or cessation of business. As a result, a special market for “used” software has evolved.

If someone purchases software and possesses the necessary licenses and original data source (e.g. a CD), that person may resell this software without concern as long as he will no longer use the software after reselling it and there are no specific licensing agreements that would rule out a resale or only permit it under certain circumstances. If software is not delivered in a CD-format and is instead made available by download – as is common these days – the legal situation is not nearly as clear.

Specialist attorneys for industrial property protection recommend that software manufacturers make use of legal advice to clearly and explicitly define their terms of use and to consistently pursue violations. On the other hand, software merchants also have rights. It must be decided on an individual basis according to the facts and the law as to the procurement of a software and its so-called depletion of the right of distribution.

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LHR is involved in landmark proceedings in front of the German Federal Supreme Court (BGH) – “Green-IT”: Sale of software box products is permissible by the mere transmission of a product key

LHR was involved in proceedings that moved from the District Court Frankfurt all the way to the German Federal Supreme Court involving an action for an injunction by a software manufacturer against a merchant of used software.

Simply put, the Supreme Court ruled that the sale of non-packaged software by means of transmitting the product key is permissible. Thus, the software manufacturer may not prescribe the channel of distribution of its software.

Click here for details about the case

Attorneys protect sellers of used software and actively confront software manufacturers

Sellers of used software can take a stand against software manufacturers. Unfortunately, many software manufacturers refuse to accept the clear-cut guidelines of the European Court of Justice. Even now, four years after this landmark case, they still attempt to bypass the decision by inserting unlawful clauses into their licensing terms. It is important that software merchants are aware that they can actively fight against such illegal provisions.

By using appropriate means, you

  • can take a stand against illegal terms and conditions from software manufacturers that impede one’s own business
  • prevent unjustified VERI-notifications from software manufacturers (a program for verifying intellectual property rights) on eBay
  • show that you are able to defend yourself against future attacks

The software manufacturer is not only liable for the attorney fees, but will generally also have to pay an appropriate compensation.

  • LHR protects you against attacks from seemingly all-powerful software manufacturers
  • LHR supports you in your “counter-attack” on unfair advertising by the manufacturer
  • LHR ensures that there is an appropriate financial compensation for lost sales

Arno Lampmann, founder of the firm, partner and specialist attorney for industrial property protection: “We consult and represent software merchants in cases of alleged illegal transfer of software, prohibited sale of software or any other violations of the terms of use.”

Contact us by email or telephone!

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Practical handbook for enforcing claims in competition law

2nd, completely revised and updated edition

Arranged chronologically, differentiated structure, numerous cross-references and, brand new: Extensive practical information on every process situation.

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Praxishandbuch Anspruchsdurchsetzung im Wettbewerbsrecht