Shirokov v. Dunlap, Grubb & Weaver PLLC et al

Filing 55

Opposition re 42 MOTION to Dismiss The Second Amended Class Action Complaint filed by Dmitriy Shirokov. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Sweet, Jason)

BaumgartenBrandt Attorneys at Law
Friedrichstr. 95-10117 Berlin
Attorneys at Law

State Court Berlin
Littenstraße 12-17
10179 Berlin

Sekretary
Direct dial
E-Mail
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Dr. Ralf Baumgarten
Philipp Brandt
AndréNourbakhsch

Ms. Haase
[phone]
[e-mail]
13/11/nli

Intern. Handelszentruin
Friedrichstraße 95
10117 Berlin
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F+49
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April 15, 2011

URGENT! Please submit immediately!
-16055/11
In the matter of the preliminary injunction
Guardaley Ltd. inter al. v. BaumgartenBrandt GbR
We substantiate our objection of 3/15/2011 as follows:
I. Facts
1.

About the Parties
Petitioner No. 1 for the injunction* is a capital company with limited liability
(Limited) under English law, formed on 4/24/2008.
Initial Proof: Extract from the Companies' House Register as
- Exhibit AG 1 –
It has maintained a branch in Germany in Karlsruhe since 1/29/2009.

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Initial Proof: Commercial Register extract for Petitioner No. 1 as
- Exhibit AG 2 Petitioner No. 2 for the injunction*acts in commerce for Petitioner No. 1 as Director of Data
Services.
Initial Proof: Affidavit of Petitioner No. 2 of 12/31/2009 before the
United States District Court for the District of Columbia (File no.: CA.
1:10-cv-00453-RMC) in English as
- Exhibit AG 3 –
Respondent against the injunction* is a law office located in Berlin.
Attorney André Nourbakhsch (formerly Respondent No. 2 against the motion*) is an employee
of the Respondent. In such capacity, he works at the address of the Respondent solely for the
Respondent and does not pursue his own business activities there. Without limiting the generality
of the foregoing, he is not a partner or managing director of the Respondent against the
injunction.
2.

Contractual Relationship between Petitioner No. 1 and the Respondent
There was a contractual relationship between Petitioner No. 1 and the Respondent, on the basis
of which Petitioner No. 1 developed, and made administrative software available to Respondent
for the duration of the contract.
In addition, Petitioner No. 1 entered into contracts with holders of copyrights for films. The
subject of such contracts is the collection and documentation, for secure evidentiary purposes, of
IP connection data of internet connection owners offering for download, in infringement of
copyright, copyrighted works of clients of Petitioner No. 1 to other users, in a so-called peer-topeer procedure (also called file-sharing). In this connection, it is denied, on the basis of lack of
knowledge, that the Petitioner [sic] was also commissioned by its clients to investigate the IP
data of owners of connections who merely attempted to download copyrighted works, without it
being documented that the download was actually completed, much less that such works were
offered via such connections for download, i.e., were publicly made available.
The Respondent also entered into contracts, for the provision of legal services, with copyright
holders that had previously also entered into contracts with Petitioner No. 1 for the investigation
of IP addresses. Respondent, in the context of its legal services, moves for orders to secure and
reveal IP addresses of the connection owners behind the Internet service providers and asserts
against such persons cease-and-desist and damages claims. Respondent is commissioned by its
clients solely to proceed against such connection owners who make films publicly available,
within the meaning of § 19 a of the Copyright Law, on the Internet, in infringement of copyright.
It was not, and is not, commissioned to proceed against connection owners who merely attempt
to download films, without offering the same to the public. For the motion to obtain the orders to
secure and reveal pursuant to § 109 (9) of the Copyright Law, necessary to conduct the ceaseand-desist proceedings, the Respondent presents to the respective court the Affidavit of
Petitioner No. 2, in which Petitioner No. 2 declares that that only such IP addresses are identified
as offering filmed works for download. He did not declare therein that Petitioner No. 1
investigates the IP addresses of persons who merely download filmed works or who have only
attempted to do so.
Initial Proof: Affidavit of Petitioner No. 2 as
- Exhibit AG 4 -

Clients of Petitioner No. 1 were, and some still are, still clients of Respondent. Mr. Mark Damon,
who is mentioned in the Affidavit of Ms. Barbara Mudge, represents, for example, the company
Foresight Unlimited, located in the USA, and which at the time of the statements at issue in this

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dispute was both a client of Petitioner No. 1 and a client of the Respondent. In order to comply with
its obligations as attorneys pursuant to the service agreements with its clients pursuant to the
Federal Attorneys’ Regulation and the Regulation of Professional Responsibility, Respondent
naturally continues to maintain contact with its clients, and thus with Mr. Mark Damon of Foresight
Unlimited, irrespective of the existence of contractual relationships of clients of Petitioner No. 1.
3. Termination of the Contractual Relationship between Petitioner No. 1 and the
Respondent
Respondent terminated, as of 1/21/2011, the contract between Petitioner No. 1 and the
Respondent, without notice. The termination was sent to the Petitioner No. 1 and was received by
the latter prior thereto by fax on 1/21/2011.
Initial Proof: Termination letter by the Respondent dated 1/21/2011
with transmission report of the fax transmission on
1/21/2011, 20:07 as
- Exhibit AG 5 In addition, as of 1/25/2011, Petitioner No. 1 declared to the Respondent, over the signature of
Petitioner No. 2, the termination, without notice, of the of the existing contract. The termination
was received by the Respondent by fax on 1/25/2011, at14:37 and on 1/26/2011 by mail.
Initial Proof: Telefax of the Termination Letter of Petitioner No. 1 for
the injunction dated 1/25/2011, 14:37
- Exhibit AG 6 Thus, the Petitioners knew, at least at the time of sending the motion for preliminary injunction to
the State Court of Berlin, of the termination of the contract by the Respondent. While the motion
for the issuance of the preliminary injunction is dated 1/21/2011, it was not received by the Court
until 1/26/2011. The sending of the motion thus cannot have occurred prior to Tuesday,
1/25/2011. In fact, we allege that the Petitioners sent the motion for issuance of the preliminary
injunction after 1/25/2011, 14:37, i.e., after receipt by Respondent of the termination by Petitioner
No. 1. If the Petitioners are of a different view, then let them state and prove such.
To the extent the Petitioners in their motion for issuance of the preliminary injunction state that
they were in a contractual relationship with the Respondent commencing in 2009, then the result
is that they intentionally failed to state the fact that such contract had ended as of 1/21/2011. We
expressly refer to the criminal law relevance of such false testimony.
4. Telephone Conversation between Mr. Nourbakhsch and Ms. Barbara Mudge
a. Professional Position of Ms Barbara Mudge and Reason for Calling Her
Ms. Barbara Mudge is a member of the Board of Directors of the Independent Film and
Television Alliance (IFTA) in Los Angeles, USA. She is responsible for companies from the film
industry that are IFTA members. Included among such companies is, as can be seen from the text
of the Affidavit of Ms. Barbara Mudge (Exhibit AS 3), Foresight Unlimited, represented by Mr.
Mark Damon.
Ms. Mudge has also been active for some time as an employee of Petitioner No. 1.
Initial Proof: Email of Ms. Barbara Mudge of 2/25/2011 as
- Exhibit AG 7 Thus, Ms. Mudge was, and is, at no time a client of Petitioner No. 1, but rather its employee.

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In addition, neither the Petitioners nor Ms. Barbara Mudge state, in the grounds of the motion or
in the preliminary injunction, the background of the telephone conversation between Ms. Mudge
and Mr. Nourbakhsch. Ms. Barbara Mudge did not, as the grounds of the motion and the
Affidavit might suggest, call Mr. Nourbakhsch for no reason. Rather, the telephone call took
place after the Respondent had called its client, Foresight Unlimited. Apparently, thereafter Mr.
Mark Damon of Foresight Unlimited called Ms. Mudge. It is impossible for us to know whether
Ms. Mudge was then speaking to Mr. Nourbakhsch as a representative of Foresight Unlimited or
in her capacity as an employee of Petitioner No. 1. In any case, the conversation took place at the
desire, and on the initiative, of Ms. Mudge and with the knowledge of the client of the
Respondent, Foresight Unlimited.
The information transmitted to Ms. Mudge in the conversation with Mr. Nourbakhsch related solely
to the client relationship between the Respondent and the client, Foresight Unlimited, and the
telephone conversation previously conducted with Mr. Mark Damon. Ms. Mudge wanted to hear
again for herself the questions raised therein. In this connection, reference was expressly and
repeatedly made during the conversation to the conversation with Mr. Damon and Ms. Mudge
repeatedly stated that Mr. Damon was her client and that she was, in her telephone call, complying
with his request that she hear for herself was had been stated to him.
Initial Proof: Testimony of Mr. Nourbakhsch, to be subpoenaed
via the Respondent
The grounds for the motion and the Affidavit of Ms. Barbara Mudge also give the impression that
Ms. Mudge was called on 1/5/2011 at the initiative of Mr. Nourbakhsch. In fact it was Ms. Barbara
Mudge herself who initially tried to call Mr. Nourbakhsch on 1/5/2011, at ca. 16:30.
Initial Proof: Testimony of the employee of the Respondent, Ms.
Nadine Haase, to be subpoenaed via the Respondent
Since Mr. Nourbakhsch was not available at the time of Ms. Mudge’s call, Mr. Nourbakhsch as
well as Mr. Philipp Brandt, Partner of the Respondent, called Ms. Mudge back on the same day.
Initial Proof: Testimony of Mr Nourbakhsch, to be subpoenaed
via the Respondent
Ms. Mudge has incompletely and incorrectly represented the contents of the telephone
conversation. At the time of making the Affidavit of 1/16/2011, and thus 11 days after the telephone
conversation, Ms. Mudge was apparently unable to remember precisely the contents of the
conversation. This is seen in the fact that she writes: “In gist, a telephone conversation with the
following contents took place”. Thereupon she provides „the gist“ of a summary of the contents of
the conversation, abridged to the motion for the injunction and incorrectly and incompletely states
what was said. In addition, the conversation was in English, and thus a foreign language for Mr.
Nourbakhsch. Moreover, the contents of the conversation were of a legal nature, as a result of
which, Ms. Mudge, who unlike Attorney Nourbakhsch, is not an attorney, could have
misunderstood what Mr. Nourbakhsch said.
That Ms. Mudge misunderstood the contents of the conversation, is seen with respect to the
statement (which is no longer part of the dispute) in Point 1) of the Affidavit (Exhibit AS 3).
Already in this Point Ms. Mudge incorrectly stated what was said: Mr. Nourbakhsch informed Ms.
Mudge that Petitioner No. 1 had, over a period of five months, transmitted to another law firm IP
connection data that Petitioner No. 1 had collected for a copyright holder which was being legally
represented by the Respondent. Such law firm had then, at the instigation of Petitioner No. 1,
conducted, in the name of the copyright holder, copyright proceedings pursuant to § 101 ( 9) of the
Copyright Law at various State Courts and had obtained appropriated orders for the disclosure of
the data on the owners of the Internet connections. Mr. Nourbakhsch informed Ms. Mudge that
there was an exclusive client relationship between the copyright holder and the Respondent and the
Petitioners did not inform the copyright holder of the transmission of the data to the third law firm.
In contrast therewith, Ms. Mudge alleges in the Affidavit that Mr. Nourbakhsch stated that legal
titles had been obtained which had been assigned to the Respondent. The Respondent does not have
rights assigned to it. It is also incomprehensible for Ms. Mudge to claim that Mr Nourbakhsch

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claimed that the third law firm had instituted legal complaint.
b. As to the statements in the conversation that relate to the dispute
aa. As to Heading Point 1. a) — Theft of Software
In the telephone conversation at issue with Ms. Mudge, Mr. Nourbakhsch did not say that
Petitioner No. 2 had stolen the investigation software used by Petitioner No. 1 from a Swiss
company. Rather, Mr. Nourbakhsch merely informed Ms. Mudge about the circumstances of the
previous employment of Petitioner No. 2 with Logistep AG. Specifically, he informed her that
the Petitioner No. 2 had been employed until October 31, 2008, as Manager of the Technical
Department of Logistep AG and that the latter had developed software for the investigation of
copyright infringements. In an affidavit for a complaint in the USA against Petitioner No. 1 that
has been published in the Internet Petitioner No. 2, however, claimed that he had been working
for the Petitioner No. 1 since the beginning of 2007.
Initial Proof: Testimony of Mr.Nourbakhsch, to be subpoenaed via
the Respondent
In addition, Mr. Nourbakhsch reported to Ms. Mudge that employees of Logistep AG had seen in
the company car of Petitioner No. 2, during the latter’s employment for Logistep AG, brochures
and business cards of Guardaley Ltd.
Initial Proof: Testimony of Mr. Nourbakhsch, to be subpoenaed
via the Respondent
Mr. Nourbakhsch expressly informed Ms. Mudge, that on the basis of the overall appearance of
the circumstances, he could no longer, despite the long and good cooperation with the Petitioners,
assume with certainty that Petitioner No. 2 had not, in the development of the software of
Petitioner No. 1, had illegal recourse to the copyrighted know-how of Logistep AG. Mr.
Nourbakhsch repeatedly emphasized that so far it was all only justified uncertainty, that the
Respondent had, however, tried and was continuing to attempt to clarify the issue with Petitioner
No. 1, in order to remove the doubts.
Initial Proof: Testimony of Mr. Nourbakhsch, to be subpoenaed via
the Respondent
In addition, Mr. Nourbakhsch told Ms. Mudge, that Petitioner No. 2 was not willing, despite
written demand by the Respondents, to dispel such uncertainties by making an affidavit.
Initial Proof: Testimony of Mr. Nourbakhsch, to be subpoenaed via
the Respondent
Ms. Mudge failed to state all of these details in the Affidavit. She only reports what “stuck in her
mind” after the telephone conversation of 11 days previously. And that is solely her own
conclusion from the details of what was said, to wit, that the software had been “stolen”.
bb. As to Heading Point 1.b) aa) — Undependable Research Service
Mr. Nourbakhsch indicated to Ms. Mudge that the Respondent had learned that the IP
connection data determined by the Petitioner No. on the commission of the copyright
holders was not 100% accurate. That the Petitioner No. 1 had included not only so-called
uploaders, i.e., those offering works, but also persons who had made download inquiries to
Petitioner No. 1. In addition, Mr. Nourbakhsch said that Petitioner No. 1 did not distinguish
between up- and download determinations or did not mark them appropriately. The
download inquiries were [verb missing…probably “designated”] as “Determinations”, of
which it was unable to be determined how many there were, without exception for civil
law copyright claims without meaning. This meant that an unknown number of cease and

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desist letters about copyright infringements might have been undertaken without a legal
basis and that the Respondent did not have any way, either at that time, or today, of
identifying such. Finally, Mr. Nourbakhsch indicated to Ms. Mudge that unjustified cease
and desist letters could, in certain circumstances, result in damages claims of the persons
receiving such letters against the copyright holders.
Initial Proof: Testimony of Mr. Nourbakhsch, to be subpoenaed via
the Respondent
cc. As to Heading Point 1.b) bb) — Class Action in the USA Pending
Mr. Nourbakhsch indicated to Ms. Mudge that a class action complaint was to be found on the
Internet, from which it could be seen that a plaintiff had instituted suit for himself as well as for
4,500 other affected persons against various parties, inter alia, Petitioner No. 1. He also informed
her that the complaint was, on the basis of the grounds, based upon the accusation of “fraud and
extortion”.
Initial Proof:

Testimony of Mr. Nourbakhsch, to be subpoenaed via
the Respondent

d. As to Heading Point 1. b) cc) — Offering Services by Others
In addition, the Affidavit of Ms. Mudge is incorrect to the extent that it claims that Mr
Nourbakhsch offered to have investigations performed for “her clients” by another, specified
company. The only correct aspect of this statement is that Ms. Mudge asked Mr. Nourbakhsch if
there were other service providers as an alternative to Petitioner No. 1. Mr. Nourbakhsch answered
this question by saying that there were numerous firms on the market. In response to the additional
question by Ms. Mudge, as to whether and to what extent a change of service provider was
possible, Mr. Nourbakhsch, in the context of his technical understanding, answered that the
assumption of investigative activities by another firm was at least technically possible without
problem.
5. In the Alternative: No Allegation of Untrue Facts
There would also be true facts in the statements forming the subject of the dispute. With respect
thereto, individually:
a. As to Heading Point 1. a) — Theft of Software
It is claimed that, in the development of the software used for research by Petitioner No. 1, that
the software was thus “stolen”. That the investigative software of Petitioner No. 1 is based on the
knowledge of third parties can be concluded from the circumstances, particularly the
circumstances relating to the employment of Petitioner No. 2.
In the judicial proceeding before the United States District Court for the District of Columbia,
Petitioner No. 2 claimed, in an affidavit of 12/31/.2009 (File No..: CA. 1:10-cv-00453-RMC) to
have been employed since January 2007 for the Petitioner No. 1.
Initial Proof: Affidavit of Petitioner No. 2 before the United States
District Court for the District of Columbia
dated12/31/2009(File No.: CA. 1:10-cv-00453-RMC) in
the English language, previously submitted as
- Exhibit AG 3 He was, however, employed at Logistep AG, with its offices in Steinhausen, Switzerland, in a
managerial position as Chief Technical Officer, i.e., Manager of Technology. Thereafter, until
2/21/2009, he was an independent contractor for Logistep AG.

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Initial Proof: 1. Affidavit of Mr. Richard Schneider, Member of
the Administrative Board of Logistep AG,
Sennweidstr. 45, 6312 Steinhausen, Switzerland as
- Exhibit AG 8 2. Testimony of Mr. Richard Schneider,
Logistep AG, Sennweidstr. 45, 6312
Steinhausen, Switzerland
Logistep AG provides, as does Petitioner No. 1, services in the Internet and in the area of Internet
security.
Initial Proof: 1. Commercial Register extract of Logistep AG
as
- Exhibit AG 9 2. Affidavit of Mr. Richard Schneider, Member
of the Administrative Board of Logistep AG,
Sennweidstr. 45, 6312 Steinhausen, Switzerland,
previously submitted as
- Exhibit AG 8 3.Testimony of Mr. Richard Schneider, Logistep
AG, Sennweidstr. 45, 6312 Steinhausen, Switzerland
Logistep AG was one of the first companies to develop and use software for the collection, for
secure evidentiary purposes, of IP addresses. Such software was develop by several Logistep AG
employees over a period from February 2004 to May 2005 and has continuously been developed
since then.
Initial Proof: 1. Affidavit of Mr. Richard Schneider,
Member of the Administrative Board of
Logistep AG, previously submitted as
- Exhibit AG 8 2. Testimony of Mr. Richard Schneider,
Logistep AG, Sennweidstr. 45, 6312
Steinhausen, Switzerland
Petitioner No. 2 never disclosed to Respondent that he had worked for Logistep AG in the past, nor
did he disclose that he had been employed by Logistep AG until October 31, 2008, and had worked
with it until 2/21/2009 as an independent contractor.
According thereto, Petitioner No. 2, by his own statement, worked in a parallel fashion for
Petitioner No. 1 in the same position, without disclosing this to Logistep AG.
Petitioner No. 2 also had, prior to his departure from Logistep AG his calls secretly forwarded from
his office telephone number at Logistep AG to his cell phone number, 0176-24791824. He had the
call forwarding installed, not on his telephone, but rather at the Logistep AG telephone services
provider, so that the call forwarding would not be seen on the displays of the Logistep

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AG telephones. The call forwarding was discovered by chance only on 4/29/2010 by Mr. Richard
Schneider and Mr. Michael Wicher of Logistep AG.
Initial Proof: 1. Affidavit of Mr. Richard Schneider,
Member of the Administrative Board of
Logistep AG, previously submitted as
- Exhibit AG 8 2. Testimony of Mr. Richard Schneider, Logistep
AG, Sennweidstr. 45, 6312 Steinhausen, Switzerland
3. Affidavit of Mr. Michael Wicher, Mitarbeiter der
Logistep AG as
- Exhibit AG 10 In addition, Petitioner No. 2, while he was working for Logistep AG, had all emails directed to his
email address [e-mail] at Logistep AG forwarded to his private email address.
Initial Proof: Affidavit of Mr. Leszek Oginski, Direktor der
Logistep AG as
- Exhibit AG 11Finally, Mr. Oginski of Logistep AG saw brochures and business cards of Guardaley Ltd. In the
company car of Petitioner No. 2, while he was still working for Logistep AG.
Initial Proof: Affidavit of theHerm Leszek Oginski, Director
der Logistep AG, previously submitted as
- Exhibit AG 11 Petitioner No. 2, however, offered, in the name of Petitioner No. 1, to the Respondent already on
12/10/2008, i.e., while he was still working for Logistep AG as an independent contractor, to
collect data on internet connection owners who offer copyrighted works for downloading on the
Internet.
Initial Proof: Email dated 12/10/2008 of Petitioner No.

2 as
Exhibit AG 12 -

In light of the fact that Logistep AG employed three employees for some 16 months in the
development of its investigative software it is remarkable that Petitioner No. 1 was able, prior to
the departure of Petitioner No. 2 from Logistep AG, to offer the same services as Logistep AG.
The doubts of Respondent as to the copyright status and above all as to the reliability of the
„Observer" software were intensified by reason of the fact that Petitioner No. 2 contacted Mr.
Nourbakhsch on 11/30/2011 by email and requested that the Respondent only use the expert
opinion on the functionality and reliability of the “Observer” software only in critically
necessary cases, without being able to state a credible reason therefor.
Initial Proof: Email of 11/30/2010 of Petitioner No. 2 as
- Exhibit AG 13 -

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As a result of the aggregate impression of such facts, the Respondent began to have doubts about
the copyright status of the “Observer” data collection software of the Respondents [sic {has to be
“Petitioners”}]. The Respondent feared that Petitioner No. 2 could have had recourse to the
know-how of his previous employer, Logistep AG, in the development of the investigative
software used by Petitioner No. 1.
As a result, Mr. Nourbakhsch asked both Petitioners for a binding counterstatement in the form
of an affidavit for the purpose of removing such misgivings.
Initial Proof: Email of Mr. Nourbakhsch of 1/12/2011, with
attachments, as
- Exhibit AG 14 Both Petitioners refused, until making the motion for preliminary injunction, to make such an
affidavit and thus to remove such doubts. All they did was inform the Respondent that they had
transmitted the affidavits to a Mr. Guido Hettinger and that that the affidavits would be able to
be executed „only after the completion of an outside examination".
Initial Proof: Email of Petitioner No. 2 dated 1/14/2011
- Exhibit AG 15 Only in the context of the motion for preliminary injunction did the Petitioners make such a
statement.
b. As to Heading Point 1. b) aa) — Unreliable Investigative Services
Petitioner No. 1 is, as noted above, obligated and authorized to collect for the Respondent only
the IP data of so-called uploaders, but not, that of persons who only engage in a so-called
download or only inquire as to a download of copyrighted films. Commensurately, the
Respondent only issues cease and desist letters against the upload, as making publicly accessible
pursuant to § 19 a of the Copyright Law.
In January 2011, Respondent learned from ipoque GmbH that the investigative services being
performed by Petitioner No. 1 were, in part, not what had been agreed upon with the copyright
holders and did not correspond with the cease and desist letters and were thus unreliable.
ipoque GmbH is an IT firm that offers various services in the area of bandwidth and Internet
management. The company is active internationally, inter alia, for various German universities.
Initial Proof: 1. Presentation of representative clients of ipoque GmbH
under their Internet presence at
http://www.ipoque.comicompany/customerreferences as
- Exhibit AG 16 –
2. Testimony of Dr. Frank Stummer, to be subpoenaed via
ipoque GmbH, Mozartstral3e 3, 04107 Leipzig
One area, for which, inter alii, Dr. Frank Stummer is responsible, is the forensic data investigation
of IP addresses where copyright infringements are occurring.
On the basis of the following incident, ipoque GmbH determined that Petitioner No. 1 collects IP
data on owners of connections which are not making any films publicly available, which are thus
not engaging in any “upload.”
On 11/18/2009 at 01:03:25 CET, ipoque GmbH conducted a so-called test screening of the film
„Antichrist" on the Internet. This film was being investigated at such time by Petitioner No. 1, on

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Internet exchanges, especially Peer2Peer networks such „Bittorrent", in the name of the copyright
holder. The IP addresses collected by Petitioner No. 1 were identified by the Respondent in a
proceeding pursuant to § 101 (9) of the Patent Law and a cease and desist letter sent to the owners
of the connection pursuant to §§ 97, 19a of the Patent law, for the impermissible making publicly
available of the aforementioned film.
In the course of such test screening, ipoque GmbH’s software searched for the sources of illegal
copies of the aforementioned film in the „Bittorrent" network, i.e., searched for download
possibilities from servers offering such files (uploaders). On the ipoque GmbH servers there was at
this time, as at no other time, a complete or partial copy of the work “Antichrist". For this reason,
no part of the film “Antichrist” was offered in the „Bittorent“ network by ipoque GmbH, nor was
this impression given on the Internet.
Initial Proof: 1. Testimony of the expert witness, Dr. Frank Stummer,
to be subpoenaed via ipoque GmbH, Mozartstrafle 3,
04107 Leipzig
2. Powerpoint presentation by ipoque GmbH “Facts about
the Cease and Desist Letter for “Antichrist,”
BaumgartenBrandt to ipoque, 11/18/2009" dated
1/13/2011 as
- Exhibit AG 17 Following the test screening, ipoque GmbH received a cease and desist letter, including an
assessment of costs, from the Respondent, in which it was demanded that ipoque GmbH make a
cease and desist undertaking by 5/18/2010. The accusation was of an upload constituting a
copyright infringement, i.e., the making publicly available of the film „Antichrist" at the
aforementioned time of the test screening.
Initial Proof: 1. Testimony of Dr. Frank Stummer, to be subpoenaed
via ipoque GmbH, Mozartstral3e 3, 04107 Leipzig
2. Cease and desist letter of 4/27/2010 to ipoque GmbH as
- Exhibit AG 18It is documented, as reliable evidence, that it is technically impossible for ipoque GmbH to have
offered such a file in whole or in part, for a so-called “upload” to have occurred. It is also
technically impossible for a download of the file to have occurred, which was not an accusation
made in the cease and desist letter. At the time in question, there was contact with only one single
third-party server on the part of ipoque GmbH, which this can only be attributed to Petitioner No.
1. But Petitioner No. 1, for its part, did not offer parts of the film. Rather, the Bittorrent monitoring
program [of] Petitioner No 1 was set in such a way that it represented to other users, i.e., to their
programs, by means of a falsified bit field, that it was always in possession of 50% of the file being
sought, i.e., as to which inquiry was being made.
Initial Proof: 1. Testimony of the expert witness, Dr. Frank Stummer,
to be subpoenaed via ipoque GmbH, Mozartstrafle 3,
04107 Leipzig
2. Powerpoint presentation by ipoque GmbH “Facts about
the Cease and Desist Letter for “Antichrist”,
BaumgartenBrandt to ipoque, 11/18/2009" dated
1/13/2011 as
- Exhibit AG 17 For purposes of technical understanding, it should be explained that, as soon as a Bittorrent client

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program of a user receives such a notice from another client program, it sends to the client of the
other user a download inquiry for such file parts. Such an inquiry was sent at the time from the
program (client) of ipoque GmbH to the server of Petitioner No. 1 and thereupon the IP address of
the user, i.e., specifically the former IP address of ipoque GmbH’s server, was recorded by
Petitioner No. 1. That occurred even though ipoque GmbH neither offered an upload in
infringement of copyright nor effected a download in infringement of copyright, because the server
of ipoque GmbH could not receive any parts of the copyrighted file from the server of Petitioner
No. 1, because they were not there.
Initial Proof: 1. Testimony of the expert witness, Dr. Frank Stummer,
to be subpoenaed via ipoque GmbH, Mozartstrafle 3,
04107 Leipzig
2.

Powerpoint presentation by ipoque GmbH “Facts about the
Cease and Desist Letter for “Antichrist,”BaumgartenBrandt
to ipoque, 11/18/2009" dated 1/13/2011 as
- Exhibit AG 17 -

The consequence of this was that ipoque GmbH wrongfully received a cease and desist letter, on
the basis of incorrect data collection.
After such cease and desist order became known, Petitioners had a meeting with ipoque GmbH’s
attorneys, as well as with Mr. Stummer. In the context of such meeting the aforementioned
power point presentation (Exhibit AG 17) was shown to the Petitioners.
Initial Proof: Testimony
of Mr.
Dr. Frank Stummer, to be
subpoenaed via ipoque GmbH, Mozartstral3e 3,
04107 Leipzig
Subsequently, Petitioners intentionally failed to disclose the entire contents thereof to the
Respondent and to the clients of Petitioner No. 1. Only when the Respondent happened to have
contact with ipoque GmbH in January 2011, did it learn that Petitioner No. 1 had made incorrect
data determinations. After ipoque GmbH informed the Respondent by telephone that the
monitoring services of Petitioner No. 1 were defective, employees of the Respondent, including
Mr. Andre Nourbakhsch and Mr. Christian Roloff traveled on 1/13/2011 to ipoque GmbH at its
offices in Leipzig and had the course of the test screening explained to them, using the
PowerPoint presentation that ipoque GmbH had already shown to Petitioner No. 1.
Initial Proof: 1. Testimony
of
Mr. André Nourbakhsch, to be
subpoenaed via the Respondent
2. Testimony of Mr. Christian Roloff, to be subpoenaed
via the Respondent
c.

As to Heading Point 1. b) bb) — Class Action pending in the USA
Contrary to the allegation of Petitioners, a class action is pending in the USA against Petitioner
No. 1. Mr. Dimitriy Shirokov, in his own name and in the name of 4,756 persons, instituted suit
against Dunlap, Grubb & Weaver PLLC, US Copyright Group, Thomas Dunlop,

11

Nicholas Kurtz, Petitioner No. 1 and Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG. The
plaintiffs there are being represented by the law firm of BOOTH SWEET LLP in Cambridge,
Massachusetts, USA..
Initial Proof: Class action by 4,756 plaintiffs against, inter
alia, Petitioner No. 1, made available online under
http://boothsweet.com/wpcontent/uploads/2010/08/
Master-Complaintl.pdf by the law firm of BOOTH
SWEET LLP, 32R Essex Street Studio 1A, Cambridge,
MA 02139, USA, as
- Exhibit AG 19 The complaint was filed no later than 11/26/2010 at the United States District Court, District of
Massachusetts. It has the file number 1:10-CV-12043-GAOt. On 11/26/2010, the court sent a
notice to the defendants as to the fact that complaint had filed. The notice said: „A lawsuit has
been filed against you".
Initial Proof: Notice of 11/26/2010 of the United States District
Court, District of Massachusetts to the defendants as
to the filing of a complaint
- Exhibit AG 20 The notice of the court also contained the demand to the defendants to answer the complaint
within 21 days. In the system of prosecution of civil matters by the parties, the notice of the court
of 11/26/2010 is sent to the defendants there by the attorneys of the plaintiffs. The Respondent has
no knowledge of the extent to which the complaint has been received by Petitioner No. 1.
We assume that the Director of Petitioner No. 1, when he writes in his Affidavit (Exhibit AS 1)
that a complaint of one individual person existed that the Petitioner No. 1 did not receive within
21 days, is referring to the complaint in Exhibit AG 19. In the complaint in Exhibit AG 19
reference is made only to the „Plaintiff" in the singular; as one, however, can easily see when one
reads the designation of the parties and Point 1 of the Introduction, Mr. Dimitriy Shirokov sued
for injunctive relieve „on behalf of himself and all others similarly situated" and „on behalf of
himself and 4,576 other similarly-situated victims" against, inter al., Petitioner No. 1. In addition,
the complaint was filed and accepted as a „Complaint Class Action", i.e.., a class action. Unlike in
the Federal Republic of Germany, this is possible in the United States. Other complaints in the
USA against Petitioner No. 1 were not able to be located on the Internet, where complaints have
to be made available, by the Respondent. Die Petitioner No. 1 is politely requested, if it intends to
maintain its allegation that a complaint by one single person existed, to submit the complaint of
such single person.
At bottom, it is clear that a class action complaint by 4,576 persons is pending and that Mr.
Nourbakhsch, in his statement that 4,300 persons had filed a class action complaint against
Petitioner
No. 1, had actually understated the situation. The statement by the Director of Petitioner No. 1, Mr.
Ben Perino, in the affidavit (Exhibit AS 1), that there had been at no time a class action complaint
against Petitioner No. 1, thus is, in consequence, contrary to the facts.
6.

Defective or Incomplete Service of the Order of 2/10/2011
The order of the State Court of Berlin of 2/10/2011 was neither delivered directly to Mr.
Nourbakhsch nor was the order given to a person living or employed at the home address of Mr.

12

Nourbakhsch or deposited into the mail box at the home address of Mr. Nourbakhsch. Only the
Respondent received a certified copy of the order, addressed to Mr. Nourbakhsch. This was
deposited on 2/11/2011 in the mail box of the Respondent. The undersigned, however, have not
appeared, either vis-á-vis the Court, nor vis-á-vis the Petitioners, as the procedural or trial
representatives of Mr. Nourbakhsch.
The order of 2/10/2011 was deposited in the mail box of the Respondent, to wit on Friday,
2/11/2011 at its offices, but without the motion and the exhibits thereto.
II. Legal Considerations
1.

No Execution of the Preliminary Injunction

a.

No Service of the Order upon Mr. Andre Nourbakhsch
As a result of the failure to serve the order of 2/10/2011 upon Mr. Nourbakhsch, the order has not
been executed vis-á-vis the latter, §§ 936, 929 (2) Code of Civil Procedure. The order was neither
served upon him directly pursuant to § 191 Code of Civil Procedure, taken together with § 177
Code of Civil Procedure, nor as a substitute service pursuant to § 178 (1) No. 1 Code of Civil
Procedure at the home of Mr. Nourbakhsch.
Depositing the order in the mail box of the Respondent does not constitute effective service upon
Mr. Nourbakhsch. Service at the address of his professional activity, by placing in the mail box of
the Respondent, was not possible as substitute service pursuant to § 178 (1) No. 2 Code of Civil
Procedure, § 180 sent.. 1 Code of Civil Procedure. The address of the Respondent is not the office
of Mr. Nourbakhsch within the meaning of § 178 (1) No. 2 Code of Civil Procedure. An office
within the meaning of § 178 (1) No. 2 Code of Civil Procedure is an area devoted to the business
activity of the recipient of service (Baumbach/Lauterbach/Albers/Hartmann, [Commentary on the]
Code of Civil Procedure, 69th ed.,, 2011, § 178 note 16; Federal Supreme Court {for nonconstitutional matters}] N[eue]J[uristische]W[ochenschrift]-R[echtsprechungs-]R[eport=New
Legal Weekly –Case Report]** 2010, 489 (490) note 15). The recipient of service himself has to
maintain a business office under the address (Federal Supreme Court, NJW 1998, 1958 (1959)).
Since Mr. Nourbakhsch, as an employee, does not pursue his own business activities in the offices
of the Respondent, as noted above, substitute service at the address of the Respondent is, for such
reason, excluded.
Since there was not, prior to the substitute service, any attempt to effect service upon the recipient
of the service personally, substitute service pursuant to § 178 (1) No. 2 Code of Civil Procedure, §
180 sent. 1Code of Civil Procedure is also excluded.
Service pursuant to § 172 (1) Code of Civil Procedure was also not effectively made upon
Respondent as the procedural representative of Mr. Nourbakhsch, since the Respondent was not,
or [sic] is not, the procedural representative of Mr. Nourbakhsch While the Respondent appeared
as the representative of Mr. Nourbakhsch in the pre-trial cease and desist [matter], such
appearance does not extend, however, to the judicial injunctive proceeding. The judicial
proceeding commencing with the service of the preliminary injunction is, with respect to the pretrial attorney correspondence about a cease and desist letter, a new phase and is to be
distinguished therefrom (Superior State Court of Hamburg NJW-RR 1993, 958; Musielak,
[Commentary on the] Code of Civil Procedure , 7th ed. 2009, § 172, note 2).
Since, however, the order was not executed vis-á-vis Mr. Nourbakhsch, he is no longer a party to
the proceeding and can thus be heard as a witness. As the [Berlin] Superior Court has held, a
party to a dispute who, while he was a party to the proceeding in the first instance, but, by reason
of failure to appeal, is not a party to the appellate proceeding being pursued by the other parties to
the dispute, may be heard as a witness (Superior Court [for Berlin], M[onatsschrift für]D
[eutsches]R[echt=Monthly Journal on German Law] 1981, 765). The Superior State Court of
Koblenz held the same (Superior State Court of Koblenz, NJW-RR 2003, 283). The same

13

conclusion has to apply to the opponents of a motion for a preliminary injunction who are, as a
result of failure to execute the injunction, no longer parties to the proceeding.
b.

Service of the Order upon the Respondent without the Motion
The Petitioners have also not executed the injunction vis-á-vis the Respondent. To effect
execution, there had to have been, in addition to the service of the order, a service of the motion as
well, since the order of the LG Berlin of 10.02.2011 is, read alone, without the motion, not able to
be understood.
Reference to the motion is made several times in the order. Thus, already in the decision as to
costs, the calculation is made on the basis of the motion. The Respondent thus does not know to
which points in the heading the partial amounts in controversy relate. In addition, in the grounds of
the decision, on p. 5, 3rd paragraph, a position is taken on the partial prayer in 2.d) of the motion,
without it being clear to the Respondent what prayer is meant, and what statement is supposed to
be unfair pursuant to § 4 No. 10 Unfair Competition Law.
In cases where an order of injunction refers to the motion in the heading or even only in the
grounds, the motion is to accompany the injunction (State Court of Wuppertal, Judgment of
3/18/2009, File No.: 3 0 480/08). This is all the more true, where the injunction refers to the
motion and the injunction is not understandable when read alone (Superior State Court of Celle,
Judgment of 2/3/1999, File No..: 2 U 279/98, juris [an online legal databank, similar to Lexis]).

2.

No Claim for Injunctive Relief

a.

No Competitive Relationship between the Parties
There is no competitive relationship between Petitioners and the Respondent. The characteristic of
being a competitor pursuant to § 8 (3) Nos. 2 and 3 Unfair Competition Law is excluded at the
outset in the case of the Respondent. The Respondent is, however, also not a competitor of the
Petitioner pursuant to § 8 (3) No. 1 Unfair Competition Law. The fact that both Respondent and
the Petitioner are active in the area of the pursuit of copyright infringements does not, by itself,
permit the conclusion that they are competitors within the meaning of § 8 (3) No. 1 Unfair
Competition Law. Competitors in the foregoing sense are solely businesses that attempt to market
the same or similar goods or services within the same group of customers ( Federal Supreme Court
GRUR 2007, 884 note 35 — Cambridge Institute; Federal Supreme Court GRUR 2007, 1079 note
18 — Federal Printer; Federal Supreme Court G[ewerblicher]R[echtsschutz und]U[rheber]R
[echt=Commercial Legal Protection and Copyright Law] 2009, 845 note 40 — Internet Video
Recorder; Federal Supreme Court GRUR 2009, 980 note 9 — Email advertising II). It cannot be
contended that the Respondent and die Petitioners offer the same or similar services. The
Petitioners offer investigative services in the Internet. The Respondent offers, however, exclusively
legal advice and representation. The fact that the services of both parties relate to copyright
infringement does not change the distinction between such services.

b.

Statement to Ms. Mudge neither an Allegation nor an Interference with Competitors
In the statements made to Ms. Mudge, there were neither facts within the meaning of § 4 No. 8
Unfair Competition Law alleged nor was a competitor interfered with pursuant to § 4 No. 10
Unfair Competition Law. Since Ms. Mudge is an employee of Petitioner No. 1, the statements
made to her are to be attributed to the Petitioner [sic] pursuant to § 166 Civil Code] analogously.
Allegations pursuant to § 4 No. 8 Unfair Competition Law must be made, however, to third
parties. The competitor affected by such allegation is not included in third parties in such sense.
Allegations made to it are not capable of fostering or interfering with the sales or supplies of the
business in question. This would only be true in the case allegations to persons who are not “in
the camp” of the Petitioners.
The same applies to unfairness pursuant to § 4 No. 10 Unfair Competition Law. An interference is

14

excluded if it occurs [sic: I think what is meant is that the “allegations” are made, and thus occur,
but not, obviously, the interference, which is being denied] as a result of allegations made to a
business affected by the allegation. In such case, the allegation is not capable of resulting in an
interference with the competitor.

c.No claim for Injunctive Relief for the Statements that are the Subject of the Dispute
aa.

Evidentiary Value of the Affidavit of Ms. Barbara Mudge
In light of the abridged, “summarized in gist” and incorrect representation of the contents of the
telephone conversation between Ms. Mudge and Mr. Nourbakhsch, the Affidavit of Ms. Mudge
has no evidentiary value.

bb.

As to the Allegation in Heading Point 1. a) — Theft of the Software
With respect to the statement under Point 1.a) of the heading, neither of the Petitioners have a
claim for injunctive relief. The conditions of § 4 No. 8 Unfair Competition Law and § 823 (2)
BGB, read together with § 186, 187 Criminal Code are not satisfied. Since Mr. Nourbakhsch
never claimed that Petitioner No. 2 stole the software used by Petitioner No. 1, he did not
publicize any untrue fact.
In all other respects, the statements of Mr.Nourbakhsch to Ms. Mudge as the representative, or at
least the agent of, Foresight Unlimited, the client of the Respondent, were confidential statements,
as to which the client of the der Respondent had a justified interest, § 4 No. 8, 2nd clause, Unfair
Competition Law. Communication between attorney and client are subject, pursuant to § 43 a (2)
Federal Attorney Regulation , to attorney confidentiality. At the European level, attorney
confidentiality is protected pursuant to Art. 8 (1) European Human Rights Convention (protection
of correspondence) read together with Art. 6 (1) and (3) letter c European Human Rights
Convention (right to fair proceeding) as well as Art. 7 of the Charter of Basic Rights of the
European Union (respect for communications) read together with Art. 47 (1), (2) sent. 2 and Art. 48
(2) of the Charter of Basic Rights of the European Union (right to advice, defense and
representation, respect for rights of defense). The European Court of Justice has expressly
confirmed the protection of attorney confidentiality (European Court of Justice in: NJW 1983,
503). Communications underlying attorney confidentiality is to be categorized as confidential and
privileged. In addition, the confidentiality of the statement is a consequence of the fact that Mr.
Nourbakhsch’s statements were made to only one recipient and not to a large number of recipients.
Such communications are, in the view of the Federal Supreme Court, to be classified as
confidential ( Federal Supreme Court GRUR 1960, 135 (136) — Printing Orders).
Mr. Andre Nourbakhsch, as well as the client of the Respondent, Foresight Unlimited, also
otherwise had a justified interest in the communication. To be considered, in a balancing of the
interests, is, whether the person making the statement is legally or contractually required or
obligated to communicate the facts (Kithler/Bornkamm, [Commentary on the] Unfair
Competition Law, 29th ed., 2011, § 4, note 8.23). Mr. Nourbakhsch, as an attorney, commissioned
and obligated to protect the interests of his client, Foresight Unlimited. This is a direct
consequence of the statutory and contractual obligation of the attorney to notify and warn
(Kleine-Cosack, [Commentary on the] Federal Attorney Regulation, 6th ed., Attachment I 1, § 11
Professional Regulation of Attorneys). Neglect of such obligations would have subjected the
Respondent to a potential liability claim by its client. It is not only the right, but also the
obligation, of the attorney to prevent such from the outset.
The interest of the client of the Respondent in the information constituting the subject of the
dispute is, as a result of the large number of cases processed by using the „Observer" investigative
software of Petitioner No. 1, is to be classified as very important.

cc.

As to the Statement in Heading Point 1. b) aa) Unreliable Investigative Services
Nor, with respect to the statement under Point 1.b) aa) of the Heading, does either Petitioner have
a claim for injunctive relief. Here as well, the conditions of § 4 No. 8 Unfair Competition Law

15

and § 823 (2) BGB read together with § 186, 187 StGB are not satisfied. Petitioner No. 1
provided unreliable investigative services, with the result that the statements forming the subject
of the dispute are true facts.
In all other respects, here as well, Mr. Nourbakhsch’s statements to Ms. Mudge, as representative
of the client of the Respondent, Foresight Unlimited, constitute confidential communications, to
which both the client of the Respondent and the Respondent have, for the same reasons, a
justified interest, § 4 No. 8, 2nd clause Unfair Competition Law.
dd.

As to the Statement in Heading Point 1. b) bb) — Pending Class Action Suit in the USA
Nor, with respect to the statement under Point 1.b) bb) of the Heading, does either Petitioner have
a claim for injunctive relief. The conditions of § 4 No. 8 Unfair Competition Law and § 823 (2)
BGB read together with § 186, 187Criminal Code are not satisfied. Mr. Nourbakhsch did not
publicize any untrue facts.
As set forth above, a class action complaint in the name of 4,576 persons is pending in the USA
against Petitioner No. 1. “Pending” means that the complaint has been filed with the court.
“Legally pending” means that it has been served upon the defendant. Mr. Nourbakhsch did not
say anything about legally pending, but rather only that a complaint was pending against
Petitioner No. 1. The question of whether the complaint has been served upon the Petitioner No. 1
is thus not relevant for the decision.
In all other respects, here again, Mr. Nourbakhsch’s statements to Ms. Mudge, as representative
of the client of the Respondent, Foresight Unlimited, constitute confidential communications, to
which the client of the Respondent has a justified interest, § 4 No. 8, 2nd clause Unfair
Competition Law. We refer to the foregoing explanations.

ee.

As to Heading Point 1. b) cc)
Point 1.b) cc) of the order of injunction is to be abrogated, due to lack of definitiveness, pursuant
to § 253 (2) No. 2 Code of Civil Procedure . It is not clear, from the Heading, which contractual
relationship is at issue. It is possible that the contractual relationship between Petitioner No. 1 and
the Respondent is meant. But the Heading can also be interpreted to mean that the term
“contractual relationship” means the contractual relationships between Petitioner No. 1 and its
clients.
In addition, as a result of the reference in the Heading to the Affidavit of Ms. Barbara Mudge, it is
not clear in what cases the Respondent is enjoined from contacting clients of Petitioner No. 1. Is
contact for the purpose of offering cooperation without the assistance of Petitioner No. 1 only
enjoined when one of the statements in Points 1. a), 1. b) aa) to cc) is made thereby, or only when
all of such statements are made? Where, in the first case, is the substantive difference of the
Heading in Point 1 b) cc) and the other Points of the Heading? Point 1. b) cc) of the Heading
cannot be executed, due to lack of definitiveness.
If the term „contractual relationship" in Point 1. b) cc) of the Heading refers to the contract
between Petitioner No. 1 and Respondent, then the claim for injunctive relief of Petitioner No. 1
under § 8 (1) read together with §§ 3, 4 No. 10 Unfair Competition Law fails, as a substantive
legal matter, due to the fact that the contractual relationship between the parties was terminated as
of 1/21/2011. The fact that the Respondent, following the termination of its contract with
Petitioner No. 1, makes contact with the latter’s clients, does not, by itself, result in unfairness
pursuant to § 4 No. 10 Unfair Competition Law. Because luring away clients is in the nature of
free competition, even when it is accomplished intentionally and systematically (on the basis of a
plan) and the clients are still contractually bound to the competitor. As a result, objection can
basically not be made when a business works to effect the dissolution of a contract in compliance
with statutory or contractual provisions (termination, rescission or revocation periods) and takes
advantage of the same for its own competitive purposes. Intruding into third-

16

party contractual relationships only becomes unfair when special circumstances are present
(Köhler/Bornkamm, [Commentary on the] Unfair Competition Law, 29th ed., 2011, § 4, note
10.33, referring to Federal Supreme Court GRUR 1997, 920 (921) — Vending Machine
Installers; Federal Supreme Court GRUR 2002, 548 (549) — Reimbursement of Car Rental
Expenses; Federal Supreme Court GRUR 2004, 704 (705) — Departure Letter). Thus, if a sales
representative who has left the company uses customer addresses that he has in his memory, this
does not constitute anti-competitive behavior (Federal Supreme Court GRUR 1999, 934 (935) —
Wine Consultant).
Even if there were a contractual relationship between Petitioner No. 1
however, there would still be no claim for injunctive relief.

and the Respondent,

The fact that Respondent contacts possible clients of Petitioner No. 1 for the purpose of offering
continued cooperation without the assistance of Petitioner No. 1, does not by itself result in
unfairness. As set forth above, Ms. Barbara Mudge called Mr. Nourbakhsch at the order, or at least
with the authorization, of a client of the Respondent, Foresight Unlimited, represented by Mr.
Mark Damon. The knowledge of the contact data pertaining to Mr. Mark Damon was thus not
based on the contractual relationship between the Respondent and Petitioner No. 1, but rather on
the client relationship between Respondent and Foresight Unlimited. It is thus not true that the
Respondent used customer addresses that had been entrusted to it or which it had obtained
illegally, and thus resources to which it had no right. The instant case is not comparable with cases
where employees approach customers of the employer, during the existence of the employment
relationship, in order to obtain them as future customers for their own, or a third-party, business.
Irrespective thereof, the sole deciding factor is that the Respondent contacted only its own clients.
That they are, or were, simultaneously customers of Petitioner No. 1, is irrelevant.
In addition, as previously set forth, Mr. Nourbakhsch in no way, either directly or indirectly,
introduced or offered to the customers of Petitioner No. 1 services or business such as those of
Petitioner No. 1.
On the basis of all of the foregoing, the preliminary injunction is to be abrogated.
In the event that the Court is of the view that the pleading of the Respondent is inadequate or needs to be
supplemented, we request an appropriate notice from the Court. In such event, the Respondent will gladly
supplement its pleadings extensively.
In the event that the Court requires a certified translation of Exhibits AG 3, 19 and 20, we also request a
notice from the Court.
Service on the Petitioners shall be accomplished from attorney to attorney pursuant to § 174Code of Civil
Procedure .

Susanne Preuß
Attorney at Law

17

Exhibits
AG 1 Extract from the Register of the Companies' House
AG 2 Commercial Register extract for Petitioner No. 1
AG 3 Affidavit of Petitioner No. 2 before the United States District Court for the District of
Columbia of 12/31/2009 (File no.: CA. 1:10-cv-00453-RMC) in English
AG 4 Affidavit of Petitioner No.2
AG 5 Termination Letter of Respondent of 1/21/2011 with transmission report of the fax
transmission on 1/21/2011, 20:07
AG 6 Telefax of the termination letter of Petitioner No. 1 of 1/25/2011, 14:37
AG 7 Email of Ms. Barbara Mudge of 2/25/2011
AG 8 Affidavit of Mr. Richard Schneider, Member of the Administrative Board of Logistep AG
AG 9 Commercial Register extract of Logistep AG
AG 10 Affidavit of Mr. Michael Wicher, employee of Logistep AG
AG 11 Affidavit of Mr. Leszek Oginski, Director of Logistep AG
AG 12 Email of Petitioner No. 2 of 12/10/2008
AG 13 Email of Petitioner No. 2 of 11/30/2010
AG 14 Email of Mr. Nourbakhsch of 1/12/2011 with attachments
AG 15 Email of Petitioner No. 2 of 1/14/2011
AG 16 Presentation of reference customers of ipoque GmbH under their Internet presence at
http://
www.ipoque.com/companv/customer-references
AG 17 Powerpoint Presentation of ipoque GmbH „Facts on the Cease and Desist Letter about
“Antichrist,” BaumgartenBrandt to ipoque, 11/18/2009" of 1/13/2011
AG 18 Cease and Desist Letter to ipoque GmbH of 4/27/2010
AG 19 Class Action Complaint of 4,576 plaintiffs against, inter al., Petitioner No. 1, available on
line at http://boothsweet.com/wp-content/uploads/2010/08/Master-Complaintl.pdf, by the law
firm of BOOTH SWEET LLP
AG 20 Notice of the United States District Court, District of Massachusetts to the defendants as to
the filing of a complaint, of 11/26/2010

18