In its ruling of 29.09.2016 (case reference: I ZB 34/15), the BGH commented in detail on the duties to act within a claim for injunctive relief.
A claim for injunctive relief therefore includes all possible and reasonable actions to eliminate the disruptive situation. Anyone who has been requested to refrain from selling a certain product can also be requested to recall the product as part of a claim for injunctive relief.
Obligation to refrain from certain actions
The dispute before the BGH concerned so-called “Bach flower products”. A company sold products with the name “Rescue Drops” and “Rescue Night Spray” in several companies. Due to the high alcohol content in the solutions, the products were classified as spirits. The small bottles were printed with health claims.
Following a competition law dispute with a competing company, the Munich Higher Regional Court prohibited the sale of the product in 2013. According to the Health Claims Regulation, spirits may not be advertised with health claims.
Sale of the goods by third parties despite an obligation to cease and desist
Despite the ruling of the Munich Higher Regional Court, remaining stocks continued to be sold in individual pharmacies. The competing company saw the continued supply of the product as a violation of the court’s ban on distribution. It now demanded the imposition of a fine.
Injunctive relief includes a positive duty to act
According to the BGH, based on the interpretation of the wording of the enforcement order, the company is only obliged to refrain from continuing distribution. However, it is not directly obliged to take action.
However, a claim for injunctive relief should generally be understood to mean that not only the specific act must be refrained from, but also that all possible and reasonable actions must be taken to (permanently) eliminate the impairment.
Mixture of injunctive relief and removal claims
The ruling initially gives the impression that the distinction between injunctive relief and removal claims is blurred. However, the BGH counters this in its reasoning by stating that the scope of the respective claim for injunctive relief must be determined on the basis of the required actions in the individual case.
Injunctive relief justifies obligation to recall
The entrepreneur, who has to refrain from a certain action, does not have to be responsible for the actions of third parties. However, he is obliged to influence third parties whose actions benefit him if he must expect a breach. In addition, the required action must be legally and actually possible for him and he must therefore have an influence on the unlawful actions of third parties.
“Accordingly, a debtor who has been prohibited by a court from distributing a product with a certain presentation or advertising a product with certain claims must, in principle, ensure that products already delivered are no longer distributed by its customers by recalling the product…”
Examination of obligations to act when issuing cease-and-desist declarations recommended
The decision of the BGH has a comprehensive impact on the submission of cease-and-desist declarations with a penalty clause. Accordingly, the agreed contractual penalty can be demanded even if the debtor refrains from the prohibited act but does not do everything in his power to eliminate the disturbance.
The specific duties to act always depend on the circumstances of the individual case and the form of the cease-and-desist declaration. Therefore, every party obliged to cease and desist is advised to keep an eye on their obligations to act and have them legally reviewed when submitting such a cease and desist declaration. In this way, cost-intensive contractual penalties can be avoided.