eMule Name Trademarked
By Tom Mennecke – Slyck

eMule has long been known as a free and open community of developers and enthusiasts, looking to expand the horizons of the Internet. For almost two years, eMule has redefined the eDonkey2000 network by introducing a vast array of new features and functionality that has brought this community into the mainstream.

One of the more inviting aspects of this client is its open source nature. This prompted the development of several large communities and client variants such as eMule Plus.

eMule.de is one of the larger German community sites. Other than keeping tabs on the music industry’s global war on music fans, little else threatened this site. This peace existed until Firstway Medien GmbH became a household name in the eMule community.

Firstway Medien GmbH is a German company that creates many kinds of dialers, including a corrupt version of eMule. The hacked eMule is disabled, and can only be activated once you pay for the product. In addition, the hacked client contains a dialer, dubbed MasterDialer. We spoke with eMule creator Hendrik Breitkreuz, also known as Merkur, about this program.

‘Firstway Medien GmbH is involved in all kind of dialers, mostly offering programs like "eMule Database" or a newer eMule version – for 49,- EUR. As far as I know that also handle the payment for a eMule Mod which demands a license key after 1-2 days, which you can buy for 19,95 EUR. Since this mod corrupts WinSock, it doesn’t help to remove it – even when using [an] original eMule.’

While such dialers are a fact of life in the P2P community, Firstway’s next move came as a surprise. Firstway Medien GmbH, through its lawyers Frhr. von Gravenreuth & Bernhard Syndikus issued eMule.de owner Marcus Falck a ‘cease and desist’ letter. The letter demanded that Macus give up his domain name and to discontinue using the name ‘eMule.’ What was considered a free and open name had been trademarked by Firstway Medien. The company actually filed for the trademark on April 23, 2003.

Our attempts to contact Firstway Medien went unanswered.

To combat this, eMule-Project.net and eMule.de teamed up to create Freemule.com. Freemule.com is dedicated to keeping users informed of the current situation and to raise funds for their upcoming legal campaign to pry the trademark away from Firstway. If Firstway gives up claims to the eMule name without a fight, all funds will be returned.

So far things seem to be going well for the project, as Marcus has not complied with the order and SlySoft (producer of AnyDVD and CloneCD) has thrown in their support (along with a lump of cash.) A few days later, lawyers representing Firstway rescinded their ‘cease and desist’ letter. While this is good news for eMule.de, other sites may not be so fortunate. Merkur explains:

‘[the rescinded threat] only means eMule.de is not in danger anymore, but our aim [is] to make sure no website has to fear legal threats at any time. As next action we will file a lawsuit for a deletion of the trademark. Also, the second letter is still pending and might end in a lawsuit too. Some users posted offensives against the lawyer into the forum and he now tries to make us (me) liable for those comments. Basically it is a try to disturb the Freemule project.’

As Freemule.net prepares to make sure using the eMule name is safe for everyone to use, we asked Merkur if eMule-Project.net had been threatened with any legal action.

‘No, there was no legal action against emule-project.net. Mainly German (not only .de, but with a German owner) websites which were registered after April 2003 are in danger. Firstway Medien GmbH can request them to stop using their domain, but even more important they have to pay quite some money only for getting the first warning from the lawyer. And as long as the trademark exists, they won’t have a good chance to win any trial.’

While some are quick to look back and blame eMule-Project for not registering the trademark first, an event like this was never anticipated. Merkur states that when eMule first appeared on the P2P market, the funds simply didn’t exist to register a trademark (1000-1500 EUR.) Freemule is confident that their lawsuit against Firstway will be successful, and hope to return the eMule name to the file-sharing community soon.

‘Our chances to win are quite good because there is also a "prior use" part in the German law. However, you never now how the court decides.’

This entry was posted on Monday, February 16th, 2004 at 11:15 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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