• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
+49 (0) 69 / 606 278 – 0
[email protected]
Contact form
Patent- & Rechtsanwaltskanzlei

Patent- & Rechtsanwaltskanzlei

  • Deutsch

+49 (0) 69 / 606 278 – 0

  • Facebook
  • Twitter
  • Instagram
  • LinkedIn
  • xing
  • Email
MENUMENU
  • Services
    • Advice On Protective IP Rights
    • Patent Application /TM Registration
    • Enforcement Of IP Rights
    • Defence Against IP Rights Enforcement
    • Costs
  • Company
    • Fields of Law
      • Patent Law
      • Utility Model Law
      • Employees‘ Inventions
      • Trademark Law
      • Design Law
      • Trademark and Product Piracy
      • Expert Opinions
    • Our Law Firm
      • Dr. Karl-Hermann Meyer-Dulheuer
      • Dr. Tim Meyer-Dulheuer
      • Dr. Klaus Zimmermann
      • Zhichao Ying
      • Dr. Christoph Hölscher
    • Commitment
  • Contact
    • Where To Find Us
    • Write us!
    • Request call back
  • Blog

OLG Schleswig: cease and desist declaration without penalty clause

13. July 2021

A person who has been warned can eliminate a presumed risk of repetition by making a serious declaration to cease and desist, ruled the German Higher Regional Court of Schleswig interpreting § 13 UWG. In the case of § 13a (2) UWG n. F., a simple cease and desist declaration is sufficient – without penalty clause.

Unterlassungserklärung - ohne Vertragsstrafeversprechen

Interpretation of § 13 UWG

This interesting case before the Higher Regional Court of Schleswig (OLG Schleswig 6 W 5/21) was about nothing less than the question of whether § 13 UWG abolishes the possibility of out-of-court dispute resolution.

Let us briefly recall: according to previous case law (including that of the German Federal Supreme Court (BGH)), a person who had been warned not only had to issue a cease and desist declaration, but also a promise to pay a contractual penalty in the event of a future repetition of the infringement. And because an infringer knew this, by refusing the penalty clause an infringer showed that there was still a risk of repetition (see Bornkamm loc. cit. para. 1.44 with further references).

However, the “Act to Strengthen Fair Competition” has been in force since December 2020 – we reported. The declared aim is to curb abusive warnings and to abolish the itinerant tribunal for legal infringements on the internet.

The facts

In the present case, which was decided before the Higher Regional Court of Schleswig (OLG Schleswig), the person being warned referred to the new Unfair Competition Act. The case concerned the offer of a lotion on eBay, in which the indication of a volume-related basic price and also a complete reference to the right of withdrawal were missing. Therefore, the warning notice was issued in January 2021 with a request for a cease-and-desist declaration. In February, the person warned issued a cease-and-desist declaration to the applicant – however, due to the faulty cancellation policy and the missing basic price information, but without a penalty clause, with reference to § 13a (1), (2) UWG. Only with regard to the lack of registration under § 24 of the German Packaging Act (VerpackG) did he also promise a contractual penalty.

Thereupon, the applicant applied for an interim injunction because of the lack of indication of the basic price and the incomplete instruction on the right of withdrawal. However, the civil chamber – the Chamber for Commercial Matters III – rejected the application. The presumed danger of repetition had been eliminated by the declaration to cease and desist, even without penalty clause. If – as in this case – the agreement of a contractual penalty was excluded under § 13a (2) UWG, as amended, it was contrary to the meaning and purpose of § 13 (1) UWG, if the person warned had no possibility to eliminate the presumed danger of repetition by a serious declaration to cease and desist.

The applicant’s immediate appeal is directed against this; the legislator had intended § 13 UWG only to prevent warnings to generate claims for reimbursement of expenses or contractual penalties, he argued. The legislature had been aware that it was abolishing a possibility for out-of-court dispute resolution with the legislative solution it had chosen. The Regional Court submitted this complaint to the Higher Regional Court for a decision.

OLG Schleswig dismissed the complaint

The OLG Schleswig dismissed the complaint in its entirety, finding that the application for an interim injunction had been rightly rejected. The OLG ruled that the danger of repetition required for a claim for injunctive relief pursuant to § 8 (1) UWG was lacking in the present case, which, moreover, must always be serious and tangible.

Under the conditions set out in § 13a (2) UWG, as amended, which are undoubtedly present here, the agreement of a contractual penalty is excluded.

No fundamental abolition of penalty clause

However, the OLG Schleswig emphasised that this was not a fundamental abolition of out-of-court dispute resolution and penalty-based cease and desist declarations. According to the court, the legislator had in principle retained the system of out-of-court settlement of disputes by means of a warning letter and a cease and desist declaration with penalty clause (§ 13 (1) UWG n. F.). However, the OLG explained, it had subjected this right of warning and submission to a careful reorganisation. In particular, the “reasonable contractual penalty” mentioned in § 13 para. 1 UWG n. F. was concretised for the first time in § 13 a UWG n. F..

Accordingly, the provision in § 13 para. 1 UWG in the cases of § 13a para. 2 UWG n. F. was to be understood in such a way that the creditor should warn the debtor before initiating legal proceedings and give him the opportunity to settle the dispute by submitting a cease and desist declaration.

A cease and desist declaration without a penalty clause is therefore sufficient to eliminate the risk of repetition if the requirements of § 13a (2) UWG n. F. are met, was ruled by the OLG Schleswig.

Looking for legal representation in court?

Our lawyers have many years of expertise in patent and trade mark law as well as in the entire field of intellectual property. We are authorised to represent you before any office and court – in Germany and also internationally.
Please contact us if you are interested.

 

Sources: 

WRP, OLG Schleswig 6 W 5/21

Image:

geralt | pixabay | CCO License

 

  • share  
  • share 
  • share 
  • tweet 
  • share 

Category iconInternational Intellectual Property,  Product- and Trademark piracy Tag iconOLG Schleswig 6 W 5/21,  OLG Schleswig,  UWG,  cease-and-desist declaration,  risk of repetition,  cease-and-desist declaration with penalty clause,  cease-and-desist declaration without penalty clause,  § 13a para. 2 UWG,  § 13 UWG

Reader Interactions

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Primary Sidebar

More articles about: International Intellectual Property

All articles

Blog Menu

  • Design Law
  • Healthcare & Lifesciences
  • International Intellectual Property
  • Licenses
  • News from our law firm
  • Overall
  • Patent Law
  • Product- and Trademark piracy
  • Trademark Law

Recent Posts

  • BPatG: Patent claim of cancer drug on active substance as salt 7. March 2022
  • Grant for European IP Protection: SME Fund 2022 4. March 2022
  • CODE-X vs. Cody’s: Likelihood of confusion in drinks? 25. February 2022
  • EOS lip balm no 3D trademark – appeal before ECJ not admissible 24. February 2022

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Das könnte Sie auch interessieren:

4. March 2022
Grant for European IP Protection: SME Fund 2022

Grant for European IP Protection: SME Fund 2022

14. February 2022
Crypto trading: NFT for luxury and art

Crypto trading: NFT for luxury and art

11. February 2022
Shipwreck for Iglo: lawsuit over figure Käpt’n Iglo

Shipwreck for Iglo: lawsuit over figure Käpt’n Iglo

28. January 2022
CFI: Intel rebate system – Intel successfull in legal dispute

CFI: Intel rebate system – Intel successfull in legal dispute

18. January 2022
Bundling of NRW court jurisdiction for IT and renewables

Bundling of NRW court jurisdiction for IT and renewables

4. January 2022
Classifications 2022: IPC, Nice and Locarno

Classifications 2022: IPC, Nice and Locarno

Contact us or request a call back

+49 (0) 69 / 606 278 – 0
[email protected]
Request a call back

Footer

Contact

Hanauer Landstrasse 287
D – 60314 Frankfurt am Main
Deutschland
+49 (0) 69 / 606 278 – 0
+49 (0) 69 / 606 278 – 199
[email protected]

Office Hours
Moday – Friday:   08:00-18:00

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Law Firm

  • Request non-binding call back
  • Company
  • Our Law Firm
  • ISO Certificate
  • Privacy Policy
  • Data handling for clients
  • Imprint

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • xing
  • Email

Newsletter Signup

© Patent- & Rechtsanwaltskanzlei Meyer-Dulheuer MD Legal Patentanwälte PartG mbB

Contact Form

 

Give us a call, send us an email or fill out the contact form.

+49 (0) 69 / 606 278 – 0
[email protected]

Kontaktformular

 

Rufen Sie uns an, schicken Sie uns eine Mail oder füllen Sie das Kontaktformular aus.

+49 (0) 69 / 606 278 – 0
[email protected]