This week StudiVZ won a battle against Facebook – will they lose the war?

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If you’re living in Germany, you may have heard of Plagiarius, a jokey, negative awards event. The awards are “given to those companies that the jury has found guilty of making ‘the most flagrant’ design imitations.” Looking through this year’s winners, you’ll find a trolley, a door handle, a watering can, amongst others. Of course, but for these awards, most people in Germany would rarely notice fakes.

However, the County Court in Cologne, Germany did something many did not expect. They ruled against Facebook and in favor of StudiVZ, the successful German site that many say had copied the old Facebook design down to the last detail. The only differences are logo, language and color (red instead of blue). It turned out that the Court didn’t have a problem with that. As TechCrunch’s own Serkan Toto wrote this week:

The court argues that it can’t identify any unfair practices, mainly due to the fact that StudiVZ isn’t trying to trick users into thinking they are actually on Facebook. Another factor in favor of the German site: When StudiVZ went live in Germany in November 2005, Facebook was virtually unknown in that country.

The court’s own press release states:

The similarities could also be based on the fact that the founders of StudiVZ knew the plaintiff’s website and copied it, or asked someone to copy it using the publicly accessible information in the internet.
[My translation]

StudiVZ CEO Markus Berger-de León explains:

In the design of websites, standards have evolved in many areas. How to design the navigation, and which functions belong to a social network, is almost an industrial standard today.
[My translation]

However, the courts judgement is not the end.

[Breaking] The StudiVS / Facebook battle is set to continue, as the verdict is not yet legally binding. Facebook has today said they may file an appeal at the Higher Regional Court in Cologne. They have three weeks to do so.

During the appellate proceedings, only new evidence may presented, if it could not have been presented before. But that’s a problem for Facebook as in the prevous trial the court had refused to order a code review due to a lack of evidence and assumptions that were not deemed concrete enough. Facebook wanted to compare the underlying php files to back their accusation that StudiVZ stole their code.

So can it really be legal to copy a whole user interface? This is an interesting question as it more or less affects the so-called German copycat industry., an accusation which has grown over the last few years – although is, to be fair, starting to fade. As the TechCrunch Berlin event recently heard, there is a new movement to start innovating.

[Guest post by Dominik Mayer, @dominikmayer]

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