In its decision of 27.05.2016 (case reference: 6 W 42/16), the Higher Regional Court of Frankfurt am Main ruled that the sale of previously unactivated product keys does not violate either the Unfair Competition Act or copyright law. According to the judges, the case law of the ECJ and BGH on the issue of used software trading could not be applied. This is because if software must first be downloaded by the buyer and then activated using a product key that has not yet been used, it is not used software but new software.

An illegality could only exist if the plaintiff could show that the software manufacturer would refuse its consent to the buyer downloading the software. However, the plaintiff was unable to prove this in the present case.

No decision on the principle of exhaustion and information obligations

The decision is (logically) silent on the principles according to which the seller of used product keys must provide the buyer with further information. This is because, according to the judges of the OLG, this was not a used software purchase. The court only briefly states that such information obligations to the consumer could exist in other cases. This could include, for example, “further information regarding the structure of his rights, the existence of other copies of the program and the previous purchasers of the sold copy of the program”.

A step towards legal certainty

Although there is still some ambiguity on these issues and they will have to be clarified by the courts in the future, the decision of the Higher Regional Court is a welcome clarification. It is therefore a further step towards more legal certainty in trading with product keys. The decision is not subject to appeal.