And the winner is: young businessman Daniel Giersch (33). Giersch has achieved what appeared doubtful given the size of the Google global corporation: Google is not permitted to use the “Gmail” name in Germany. “In doing so, Google infringed the young businessman’s trademark that had been previously been registered,” said the Hanseatic Higher Regional Court in its judgement (Az 5 U 87/06, July 4, 2007).
“As far as the Hanseatic Higher Court is concerned, the legal situation is unambiguous to the extent that it has not allowed an appeal to the Federal Court of Justice,” said Giersch’s lawyer Sebastian Eble, from the office of Preu Bohling & Partner. It is a legendary victory, because for many Daniels fighting “Googliaths,” confidence and financial means run out in the long course of battle.
The trademark lawsuit over “G-Mail” has dragged from court to court, from one German federal state to another, for almost three years. It has cost a lot of money and nerve. Each individual court process has required five-figure amounts. In addition to the “G-mail” lawsuit in Germany, legal proceedings by Google against Giersch are also underway in Spain, Portugal and Switzerland. As lawyer Sebastian Eble confirmed: “Google has announced, at least in writing, to ‘fight’ my client abroad for as long as it takes before he drops the legal claims lodged in Germany.” But Google has found a strong opponent in Daniel Giersch.
The scales of justice are weighing ever more in favour of the young businessman and not only in Germany: in Austria, the process has already ended to his advantage.
In Switzerland, the first instance in the Google-led cancellation proceedings has been won. Following the final judgement, Giersch will also lodge a claim against Google to prevent the use of “Gmail” in Switzerland.
Giersch said: “I had already secured the ‘G-mail’ name for myself in 2000, four years before Google. I have always believed in fairness.”
Google’s main argument of defence was that Giersch’s claim was an abuse of the law aimed only at delivering an overpriced sale of his name, but this was rejected in court. Giersch said: “I have made it clear since the beginning that I will never sell the name. It is my sole intention to realise my idea for a hybrid mail system. I am absolutely convinced of its success. Neither “G-mail” nor myself are for sale.”
With this mindset, the 33-year-old is putting himself in the entrepreneurial tradition of the so-called “men of the first hours,” who put Germany on the road to success in the post-war years. Backbone, innovation and courage are the values that are important for Giersch. The idea of “only” earning money, maybe also at the expense of others, is something he rejects. This is precisely why he sees in Germany the ideal location for the roots of international success. He said: “Germany is an innovative country with good value and legal systems. This is an ideal prerequisite for the development and realisation of forward-looking ideas. I feel good here and I am happy to work here.”
After the Google lawsuits have ended, Giersch hopes finally to be able to put all his energies into the further development of “G-mail.” The young businessman’s intention is to set new standards of communication on the Internet. Even here, he is up against Google, another reason for Giersch to make the situation clear. “My hybrid mail system ‘G-mail’ is an ingenious blend of innovative and well-tried communications solutions,” he said. “It is subject to the principles of the sanctity of the post. Google, on the other hand, scans the content of e-mails to blend in adverts. Criticism about this from data protectors that Google has to deal with harms my business. My employees and I are involved in mix-ups on an almost daily basis.”
