We won the "Geek Nerd" case against Tradebuzzer!
Today was finally the appeal hearing before the Court of Appeal in Berlin in our warning letter case regarding the use of "Geek Nerd". We have already reported several times that we were warned by the company "Trade Buzzer" almost a year ago because we sold shirts on eBay with the headline "Computerfreak Geek Nerd T-Shirt". The company "Trade Buzzer" had registered the trademark "Geek Nerd" and was now of the opinion that it could prohibit us from using this combination of terms, although we had of course been advertising our shirts in this way long before the registration and although the two terms are, of course, completely normal words in the German language, at least among somewhat younger people. The managing director of "Trade Buzzer" and his lawyer Mr. Schröder have already been active in the warning letter business before, including in areas such as file sharing and copyright infringements on the Internet. In this and similar cases involving other brands such as "Gamer" or "Sheldon Cooper", Mr. Schröder has sent around 100 (!) warning letters, as he admitted in another court case. Many of them to small self-employed people who sell a little on eBay on the side. In the warnings known to us, he demanded approx. 1500 EUR each and I don't want to know how many actually paid this...
At the time, we objected to the warning and of course didn't pay anything, but let it come to a court hearing. Back then, Mr. Schröder actually won and we were forbidden to advertise our shirts with the words "Geek Nerd". An absolutely incomprehensible decision for us, but one that we had to comply with for better or worse. So much for what has happened so far. You can of course read all the details again in our previous blog posts about this.
After losing the appeal, we of course lodged an appeal and the hearing finally took place today. In the meantime, it's really no longer a matter of peanuts, the legal and court fees have added up to around EUR 20,000. Incidentally, this also shows how difficult it is as a small eBay trader to defend yourself against something like this (which is why we have a support group support group, but I've already talked a lot about this in other blog posts). The case was heard by the Berlin Court of Appeal, which in other federal states corresponds to the Higher Regional Court. The Berlin Court of Appeal is a really beautiful old building, but unfortunately we didn't really have time to enjoy it, as there was a lot at stake today...
To cut a long story short: We won! We had advertised the warned T-shirt on eBay with "Computerfreak Geek Nerd T-Shirt" in the headline and the judge made it quite clear at the beginning of the hearing that he was at least familiar with the terms "nerd" and "computerfreak" and even though he was apparently unfamiliar with the word "geek", he thought that the meaning of this term could be deduced from the proximity to "computerfreak" and "nerd". He also saw no so-called trademark-like use of the term. To put it colloquially: The judge considers it unlikely that potential buyers of an item advertised with "Computerfreak Geek Nerd T-Shirt" would think that it comes from the manufacturer "Geek Nerd". Trade Buzzer's lawyer, Mr. Schröder from Kiel, then tried to put forward a few arguments, but in my opinion they were only aimed at some legal quibbles and clearly did not convince the judge. The judge even asked Mr. Schröder if he might not want to give up quickly, then he could still save 900 EUR, but Mr. Schröder didn't feel like it, apparently it was worth 900 EUR to him to hear from the judge again in writing that he had lost :D
The matter was actually already settled by then, but I still thought it was a pity that the judge didn't say a word about what we thought was an abuse of law by "Trade Buzzer". There is simply more to it than just a company that perhaps went a little too far with a legitimate claim... So I pointed out to the judge once again that Trade Buzzer had issued 100 warnings in this matter and that I considered this to be an abuse of rights, but the judge said that this didn't matter because the warning was already without foundation.
What happens now? First of all, we are of course very happy, after all we have just saved EUR 20,000, hopefully helped a whole series of small companies (because the fact that Trade Buzzer has now lost for the first time in the second instance will make it much more difficult for them to continue with the scam) and thus put a stop to the warning letter madness. Many thanks also to everyone who contacted us after our first euphoric tweet after the trial:
But the spook may not be over quite yet: there is still a chance for Trade Buzzer to go to the Federal Court of Justice. That would be really, really expensive and unfortunately there is always the chance that even if we win, we will be left with some of the costs, because Trade Buzzer could then file for bankruptcy and we would end up having to pay our lawyer ourselves. In addition, the two court hearings so far have only been the summary proceedings, in which less thorough checks are being carried out; the so-called main proceedings are already pending in parallel, which could cost just as much again if Trade Buzzer wants to continue there (but of course the summary proceedings do have an effect on the judges who decide in the main proceedings, possibly even the same ones). In this respect, it's not quite over yet, but we have won a very important battle. At the same time, we can also sue for the legal fees we have incurred so far, which we will of course do immediately, if necessary even with the managing director of Trade Buzzer personally (unfortunately, it is very difficult to hold the opposing lawyer liable, he can always claim that he is only the lawyer).
Many thanks also to our lawyers Mr. Dauskardt and Mr. Bystry from the ab&d attorneys at lawwho represented us perfectly as always :)