On May 28, Univention GmbH obtained a preliminary injunction from the Bremen, Germany, Regional Court. The order prohibits SCO-Caldera from circulating:
Further, the Bremen Court Order provides for a fine of up to 250,000 Euros (around $250,000 U.S.) or jail time for every violation of the Court Order:
(Translation from German to English by John Holroyd, Demos Technosis.)
Then, on 5 June 2003, Tarent GmbH obtained a similar preliminary injunction against SCO-Caldera from the Munich Regional Court.
Interestingly, it appears that SCO-Caldera did not fully-comply with the Munich Court Order. So, Tarent has asked the Munich Court to take action for what amounts to SCO's contempt of the Munich Court Order.
MozillaQuest Magazine has been discussing the Tarent preliminary injunction proceedings with Tarent GmbH CEO Elmar Geese and Till Jaeger, the attorney representing Tarent, via e-mail.
Unfair Competition, Trade Libel, and Barratry
Till Jaeger told MozillaQuest Magazine that Tarent's lawsuit is based upon the German unfair competition act (UWG) Section 14, which outlaws denigrations (Anschwärzung) of competitors goods or services, unless the factual assertions are proven to be true.
MozillaQuest Magazine discussed the German injunctions with John S. Ferrell. He is an intellectual property attorney and a partner in the Palo Alto, California based Carr and Ferrell law firm. He also is Chairman of Carr & Ferrell's Intellectual Property Practice Group.
He mentioned that Trade Libel might serve as a basis for similar injunctions in the United States. Trade Libel is a false writing against a business or trade that creates damage to the business.
As as an example of libel, John Ferrell mentioned during our e-mail discussion that:
McBride's 12 May letter and other threats by McBride and SCO-Caldera to sue Linux end-user companies and individuals might have exposed McBride and SCO-Caldera to additional lawsuit risks. In the comments section to an annotation on NewsForge, of our article German Penguins Launch Successful Counter-Attack in SCO v Linux War, an anonymous poster suggests:
The Tarent v SCO Preliminary Injunction
The Tarent preliminary injunction is very similar to the Univention preliminary injunction.
According to Tarent's attorney, Till Jaeger:
Contempt of Court
Additionally, Till Jaeger said:
Till Jaeger told MozillaQuest Magazine that SCO did not fully comply with the Munich Court's restraining order. Therefore, Tarent took its legal action a step further than merely obtaining an injunction against SCO-Caldera. Tarent has asked the Munich Court to enforce its preliminary injunction against SCO.
According to Till Jaeger:
Injunction is a very interesting and powerful legal remedy. It allows a court to, in effect, make some act or conduct illegal. Once a court declares some act or conduct illegal by enjoining it, the court then can punish doing the enjoined act or engaging in the enjoined conduct much as if the enjoined act or conduct were a criminal act or conduct.
In effect, one thing Tarent and Univention have done by obtaining their preliminary injunctions is to make it illegal for SCO-Caldera, Darl McBride, Chris Sontag, and associates to spread SCO anti-Linux FUD in Germany. If Linux communities in other countries follow the German Linux community's example and obtain preliminary injunctions against SCO-Caldera anti-linux FUD, SCO-Caldera's anti-Linux FUD campaign could become illegal world-wide.
Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.
Related MozillaQuest Articles
SCO-Caldera v IBM: