In its decision dated 22.07.2016 (Ref.: 15 O 330/16), the Regional Court of Berlin clearly states that a cease-and-desist letter does not have to contain an original power of attorney. Nor may a cease-and-desist declaration be made subject to the condition that it is only effective if the party issuing the warning letter provides an original power of attorney.
Warning letter after copyright infringement
Copyright infringements usually initially lead to a warning letter from the author or a lawyer commissioned by the author. A cease-and-desist declaration with a penalty clause issued by the infringer following the warning letter can avert an action for injunctive relief and damages. This is because only an effective cease-and-desist declaration eliminates the risk of repetition and thus prevents any claims.
Conditional cease-and-desist declaration
Whether the cease-and-desist declaration is also effective is always a question of the individual case. This assessment is particularly difficult if the cease-and-desist declaration is linked to a condition.
Ineffective cease-and-desist declarations are becoming increasingly common as a result of linking them to conditions. These often have serious consequences for the warned persons and companies.
Demand for the original power of attorney is an invalid condition
As the Berlin Regional Court has now ruled, the requirement to submit the original power of attorney as part of a cease-and-desist declaration is invalid. This is particularly the case if the copyright holder sends the copyright infringer a warning letter with a pre-formulated cease-and-desist declaration.
Effective cease-and-desist declaration
As a rule, when a cease-and-desist declaration is issued (and accepted by the rights holder), a contract is concluded, the effect of which only expires after 30 years. Accordingly, the warned party is bound by the cease-and-desist declaration for a correspondingly long period of time. Due to its immense importance, it is advisable to have the exact wording checked by a lawyer. This is the only way to avoid possible inconvenience.