Need urgent Legal advice!!!

[Entity101]

1) You didn't host the software in question on your webspace. You merely linked to a page/file on someone elses website. According to various jurisprudence you conclude that (deep)linking is allowed in The Netherlands.

2) The content on your website was only informative. Freedom of speech should allow you to present some information in which you use a brandname. You didn't use it out of context, nor did you write any untruths. Same as you should be able to say that you think Coca Cola tastes better than Pepsi. Or that Coca Cola contains lots of sugar, which might be very bad for your teeth.

3) You doubt the validity of the trademark, based on the KHIM info. Even if it is valid, see point 2.

4) If Sharman (or a representative) would simply informed you about their unhappiness with the content of your website, you would have gladly removed any 'objectifiing' information.

5) Say that you disagree about any potential losses that Sharman claims. The small number of people that visited your website, were most likely already aware of the malicious software and advertising that is included with Kazaa Media Desktop. The majority of people who use a modified version, would never have used the original, even if no modified versions had existed. Moreover, Sharman in facts benefits from these people because a network with lots of users attracts more new users than a smaller network. Of these extra new users, the vast majority will use the original software.
Even if their point was valid, then the solution from point 4 would have been in their best interest.

6) Say you are willing to stop hosting any information about Sharman's products, now and in the future, but that you are unwilling to sign their onthoudingverklaring.

7) Say that if they are unwilling to accept your reasonable offer, that you will claim any costs that you will have as a result of any further actions they may take.

[nostalgia]

Very true words Entity101. I might add that imo the Benelux Merkenwet is a protection for registered trademarks in economic trading. Cause Kazaa with all the adware/spyware is a free program it doesn't make any sense to me that this was violated due to s simple link. And I totally agree with you at the point that if they had made any trouble at all to contact me through my website or provider I would have changed the bit which they didn't liked but they didn't even bother to warn me. I don't know is they are obligated to warn before action is taken but it would be normal to do so.
I will phone a lawyer on monday to see what to do and how to react on the letter and also ask if it is legal/normal to send someone such intimidating letters through e-mail instead of normal procedures.

[Mïcrösöül°V³]

I would point blank tell them to jam it up their ass. period. You didnt do anything wrong. just my 2 cents worth I dont think they would bother taking the matter any further due to fact thatthey couldnt possibly gain anything from it. they just want you to be scared, bend over, and pay up. tell them to shove the letter they wrote along with a hot, sharp object straight up their ass. Tell them to send me a letter, i host KLR on my site. I would tell them to fuck off so fast that their heads would spin. but then again, Im in the USA and would be perfectly within my right to tell someone to suck a hard one.

[Arm]

http://babelfish.altavista.com <---Dutch To English

Dear lord, Ms,

On behalf of customers, the ventures Sharman Networks, Ltd and Sharman License holdings, Ltd (hereafter jointly also "Sharman") turn themselves I to you with the following.

Such as you undoubtedly weet, Sharman the exclusive auteursrechthebbende with respect to the popular computer programme Kazaa are. Moreover Sharman the houdster of benelux - and community mark KAZAA, under respectivelijk the numbers 1043348 and 176379,, including in class 9 has been deposited for software for getting in sound prerecordings.

KAZAA in the benelux and within the European Union it has been confessed mark. Software Kazaa is the most gedownloade computer programme in the history of the Internet. The programme is 360 millions time gedonwload. In 2002, and 2003, the word "Kazzaa" was the zoekterm most consulted at Internet search engines.

Recently Sharman have had observe that on the Internet site www.home.zonnet.nl/dijkema3/programmas.html a inbruekmakende version of the programme Kazaa to under the name Kazaalite. The programme is to the programme Kazaa entirely identical, subject to the presence of publicity which is lacking at the inbreukmakende versions.

Sharman you have given no authorisation the inbreukmakende programme to offer nor for use of its mark and trading name called offer services.

By as aforementioned acting you make breach of the copyrights of Sharman Networks under Article 1 jo. 12 and 13 author law 1912. moreover act you in fight with Article 13A lid1 of the benelux mark law by without using concordant with the mark Kazaa authorisation of Sharman License holdings a term.

Your manner endangers software to the normal exploitation of the Kazaa and deals to customers considerable damage, for which damage I keep you on behalf of customers responsible.

Customers on 4 February last sun the Netherlands has summoned plc with the request the aforesaid block Internet site. Meanwhile Versatel the Netherlands Ltd has as a legal successor of sun the Netherlands plc, confirmed that she has blocked aforesaid Internet site.

Customers have there importance at damage as much as possible at berperken. Given your unlawful manner request - and if necessary summon - I you thus on behalf of customers enclosed sign abstention declaration unconditionally and to me by retour mail and fax to send. Customers consider themselves rather closer warning Right measures towards you, finding if I the signed abstention declaration within seven (7) do not summon after dagtekeing these have received.

As yet customers go of it from that this question without mediation from the judge to a bevredidend end can be brought. In the meantime Sharman Networks and Sharman License holdings preserve themselves all rights for.

Yours sincerely

booklet booklet.

Appendix abstention declaration

The undersigned explains as follows on behalf of himself, as well as on behalf of every ondernemeing in which he control and at behove van Sharman Networks, Ltd. and Sharman License holdings, kantoorhoudende enb Ltd. (hereafter jointly also "Sharman") at port vila have established (Vanuata) to the Lini Highway in BDO house 1st Floor.

1. He recognises (a) Sharman's exclusive copyrights on the Kazaa software and (b) Sharman's exclusive rights to benelux - and community mark KAZAA (both hereafter "Sharman's rights").

2. He will summon within five (5) after signature of this abstention declaration already that to do what of its side necessary is bring about that offering inbreukmakende versions is concluded Kazaa and is concluded to love.

3. He with onmiddelijke entrance props and gstaakt keep every violation on Sharman's rights, among which understood (a) each production, distribution, sale or each other one use of software, among which understood software Kazaalite and K-lite, which has been inferred on only degree of the Kazaa software and (b) each directly and/or indirect use of the mark KAZAA or with that a concordant sign, among which understood the recording or the use of the field names or with that concordant signs.

4. He will pay to Sharman an allowance in by its lost out to the amount of 2,500 EURO (zegge two thousand five hundred euro). This amount serves at the latest five (5) summons after signature of this abstention declaration have been added on the account of the lawyer of Sharman.

5. He will forfeit directly opeisbare a fine of 5,000 EURO (zegge five thousand euro) per day or by time, this for the excluding choice of Sharman that they complete its obligations from this abstention declaration nakomst, notwithstanding the right of Sharman complete progress damages.

Ok thats a bad translation but hey, better than nothing or having to learn Dutch.

My advice is to tell them to fuck off and that the blood (cock?) sucking leeches arent gonna get any money out of you. There was a similar legal battle between Guns for Kids.com and Toys are Us a while ago. The sites dead now but hey, thank God for the Web Archive

http://web.archive.org/web/200105011...srus-reply.txt

Unless Dutch law is radically different from American law, having a link is not illegal.

[Mïcrösöül°V³]

precisely..tell them to go get bent

[orcutt989]

Het lijkt me slim om eens na te gaan of je inderdaad wel echt 'fout' was. Ik ga er ook van uit dat je niet wist dat Kazaa Lite een illegaal bewerkte versie van Kazaa is
Je plaatste een download link naar een site die niet van jou is, dus in mijn ogen zouden ze degene moeten beboeten die Kazaa Lite host. Ik vind het raar dat ze meteen 2,500 euro van je eisen zonder dan ook maar 1 (waarschuwings) email of telefoontje of je de inhoud van jouw website wilde aanpassen.

It seems examine me malignant once or you indeed, however, really ' wrong ' were. I assume of it also that you did not know that Kazaa Lite an illegally treat version of Kazaa is you placed downloads risky to a site which is not of you, therefore in my eyes them the one must beboeten which Kazaa Lite leap about. I find it strange that them immediately 2.500 euro of your requirements without thus but 1 (warning) e-mail or phone call or you the contents of your Internet site adapt savage.

Hmm.


It looks like German, and French mixed together, minus the crazy international characters. Go Dutch!

[Arm]

Cant we all just.........speak the same language?

[nostalgia]

Some radicaL and good advice guys! :-)
Thnx for the link in the Toys r us case. Seeing defenitely some similarity there.
And yes let us al speak the same language (Dutch???).

[Storm]

even if they dont sell the product, the trademark is still valid........ what entity 101 said in point 5 will prolly not hold up in court..... however, the other points he made (especially #1)

they are trying to bully you into this........ get yourself a "rechtsbijstand verzekering"*...... you might need it
contact their lawyer asap, tell them you're willing to sign a contract that you wont link or comment on Sharman's products, or illegal copies of its products...... but not to pay 2500 euro....... the costs they will have are way higher if you go to court, and isnt a preferable solution for either party.......
make sure that you document ALL contact with any party, be it your ISP, sharman, or their lawyer...... make a copy of all letters, and print out all emails....... after every phone call (even if you just get the answering machine, or a secretary saying no one is there!), write down the length, time and date, and what which party said (globally)..... MAKE SURE YOUR VERY SECURE AT THIS!!!!

if you go to court, you can use this a evidence, IF you did it carefully.....




*insurance in case you need legal help, so you dont have to pay the full bill

[lynx]

Since you didn't host the file yourself, you've done nothing wrong. That being the case it seems to me they are saying "Give us 2500 Euros or else..." for no good reason.

That is illegal, in UK it may be called "demanding money with menaces" or it could simply be fraud. I'm sure there is probably a similar Dutch or European law. Maybe you should take the letter to the police and ask them to take action.

In fact, you have a claim against them, for the damage they have caused to your website by making false claims to your hoster.