In industrial property law and copyright law, the infringed party may, in cases of obvious infringements, have a right to information against persons who have not committed the infringing acts (so-called third party information), see Sec. 19 (2) MarkenG, 140 b (2) PatG, 24 b (2) GebrMG, 46 (2) DesignG and 101 (2) UrhG.
Such a claim to third-party information exists in particular if the third party has provided services used for infringing activities. Such third parties are in particular Internet service providers (“Google”, “YouTube”, “Instagram” etc.), operators of Internet marketplaces (“Amazon”, “eBay” etc.) as well as banks and other financial institutions whose accounts were used for the payment of infringing sales (cf. Ströbele/Hacker/Thiering, MarkenG, 12. Aufl., zu § 19, para. 22 m. w.). N.). The protective purpose of these standards is to enable the right holder to identify the infringer. Accordingly, the right holder may request from the third parties mentioned the information on the name and address of the infringer. Such third-party information is particularly necessary in the case of infringements on the Internet because users often use pseudonyms, fictitious names or abbreviations on the Internet.
In the case “YouTube third party information”, reprinted e.g. in WRP 2019, p. 627 ff., the Federal Court of Justice, in its decision of 21.02.2019, asked the European Court of Justice to clarify whether the third party must also provide information about the infringer’s e-mail address, telephone number and IP address in addition to the name and address. In this case, three users had uploaded film works to “YouTube” without the consent of the copyright holder, so that there was an obvious copyright infringement. During the legal dispute, YouTube provided information on the names and addresses of the three infringers, so that the legal dispute was declared settled by both parties. In addition, the right holder also requested information on the respective e-mail addresses, telephone numbers and IP addresses of the three infringers. The appellate court (OLG Frankfurt am Main) upheld the action with regard to the information claimed for the e-mail addresses. However, the complaint with regard to the asserted information for the telephone numbers and the IP addresses was dismissed. As is apparent from the considerations of the Federal Court of Justice in the decision of 21.02.2019, it appears to want to follow this opinion of the Frankfurt Higher Regional Court. Accordingly, in the opinion of the BGH, the right holder can at least still request information about the infringer’s e-mail address. With regard to telephone numbers and IP addresses, the decision of the European Court of Justice remains to be seen.
If – as here – the third party has already communicated the name and address of the infringer, the question arises for the signatory whether the right holder can request additional information about the e-mail address of the infringer. The information on the name and address of the infringer already satisfies the purpose of protection of the aforementioned norms, which is to enable the right holder to identify the infringer. If, however, the name and address of the infringer are not known to the third party, the right holder is certainly entitled to at least the e-mail address of the infringer. The right holder can then use the e-mail address to find out the name and address of the infringer, for which he would normally have to first request information about the name and address of the infringer from the e-mail provider.
