It was down to a comma - Court hearing in the "Geek Nerd" case

Today was finally the first hearing in the "Geek Nerd" case. For those of you who don't yet know what it's all about: The company Trade Buzzer and their lawyer Lutz Schröder from Kiel want to prohibit us from using the words geek and nerd together, as they have registered the term "Geek Nerd" as a trademark. You can read the whole story in the previous articles about the case. We, our lawyers, many other people affected and most of you consider the whole thing to be an absolute absurdity and a loophole in the legal system that it could even get this far. Unfortunately, the judge took a different view in the interim injunction she issued. We have lodged an appeal against this decision, which is why an oral hearing was held today at 11 am. Unfortunately, it didn't go well, although we were really confident that we would be able to convince the judge that she had made the wrong decision.

The first remarkable thing was that the judge had ordered that no one was allowed to bring a cell phone into the hearing. For this purpose, court staff were specially assigned to search everyone except the lawyers at the entrance to the courtroom. The reason for this was probably that someone had asked on one of our blog posts whether we were offering a livestream of the trial and that it was clear from the large press echo that some viewers would come. There were a few viewers present, most of whom were affected themselves. Of course, nobody intended to offer an illegal livestream or disrupt the trial in any other way; everyone behaved appropriately and calmly.

Unfortunately, it quickly became clear that the judge did not want to follow our reasoning. Although she recognized that "geek" and "nerd" are common terms in the German language, she was (in layman's terms) of the opinion that our item name on eBay "Android fixed it - Computerfreak Geek Nerd T-Shirt" did not mean that we were offering a T-shirt for computer freaks, geeks and/or nerds, but that we were basically saying that we were offering a shirt from the manufacturer "Geek Nerd". Furthermore, she was of the opinion that it was not clear that Trade Buzzer was abusing the law here (i.e. only for the purpose of issuing a warning and generating warning fees), but that she considered it normal for a company to have to protect its brand in this way. In the case of mass warnings, it would be more likely that 5,000 or more warnings would be sent out rather than 32 (yes, there are at least that many now). It would be different if we had written "for computer freaks, geeks and nerds" or at least "computer freak, geek, nerd" instead of "computer freak geek nerd". The judge was not impressed by my argument that we had been selling T-shirts with exactly this description for what felt like an eternity and that Trade Buzzer could not possibly claim not to have known about it when a large number of retailers act in exactly the same way as we do and whose aim is supposedly to open up the market on eBay. It also didn't matter to her that the words "computer freak geek nerd" are intended as search terms to determine a target group (and not to designate an origin) and can only be entered without filler words such as "for" or commas due to the restriction on the length of the article name.

A verdict has not yet been reached, but the trend should be clear: The judge will probably not correct her own decision. There are also two lay judges involved, and I was actually hoping that they would see the bigger picture of the case, but I'm no longer holding out too much hope. We will probably have the verdict in 2-3 days, and of course I will inform you again here.

But of course we won't give up and will go to the next instance, which will be the Berlin Court of Appeal. As we are still in summary proceedings (the main proceedings will only take place afterwards, but again with the same judge), the hearing at the next instance will be scheduled relatively quickly, probably in 2-3 weeks. The cost risk naturally increases with each instance; we are already at over EUR 5,000 and it will be even more expensive in the second instance. In contrast to the many small eBay traders who have also been warned, such a risk hurts us, but we won't go bankrupt from it and that's why we are happy to take the risk to finally put a stop to these machinations!

Unfortunately, our plan to put an end to the "Geek Nerd" warning spook has probably failed for the time being :( The warning letter will probably be able to continue and the many small eBay traders are now faced with the decision of either taking the same high cost risk as us or giving in and paying the amounts demanded to the warning letter. At the moment, however, there is still a chance that our appeal will be successful in a few weeks, in which case the situation would be much more relaxed, at least for the "Geek Nerd" warnings. In this respect, we can only advise all other affected parties to wait for this decision. We have set up a mailing list just for those affected so that we can exchange information better.

Many thanks to all other affected parties and viewers for taking the time to watch the hearing and for supporting us morally.

Update 2/20/14: In the meantime, the judgment has arrived. As expected, the interim injunction has been confirmed.