In opposition proceedings, the Regional Court of Munich has revoked a previously issued preliminary injunction (judgment of 24.01.2017 – 33 O 7366/16). The applicant in the preliminary injunction proceedings had concealed the reaction of the warned party when asked by the court by telephone.
First a warning, then a lawsuit
In industrial property and copyright law, an out-of-court warning is usually issued before enforcement in court. If the warned party does not respond in the desired manner – usually by submitting a cease-and-desist declaration with a penalty clause – urgent court proceedings are often sought to enforce the claim. This was also the case before the Munich Regional Court.
Untruthful denial of the reaction of the warned party
Following a warning in a copyright dispute, an application was made to the court for an interim injunction. However, the application for the injunction did not include any details of the defendant’s response to the warning. In response to a telephone enquiry by the court, a reaction to the warning letter was truthfully denied.
In the appeal proceedings, it then became clear that the defendant had indeed responded to the warning. In addition, he had expressly requested in his out-of-court statement that this be submitted to the court in the event of an application for an interim injunction.
Evaluation of the reaction to a warning is the responsibility of the courts
The lawyer who had applied for the interim injunction in accordance with his instructions had therefore not only lied to the court by telephone, but had also concealed a relevant statement. In the appeal proceedings, the lawyer then tried to justify his lie by claiming that, in his opinion, there had been no appropriate reaction to the warning. However, the assessment of the extent to which a reaction to warnings is appropriate is the sole responsibility of the courts.
Abuse of rights: concealing the reaction to a warning letter in court
The Munich Regional Court responded to the lawyer’s audacity and revoked the injunction already issued due to abuse of rights. It could be left open whether the failure to submit the reply to the warning letter alone constituted an abuse of rights. This is because the mere act of fraudulently obtaining a title by circumventing the procedural duty to tell the truth constitutes a relevant abuse of rights, section 43a para. 3 sentence 2 BRAO, § 138 ZPO.
Duty of truth for lawyers in the context of interim injunctions
If the Chamber had been aware of the reply to the warning letter, it would in any case have demanded further substantiation of the communication to the public of the copyrighted work before making a decision. However, after unsuccessful parallel proceedings before other courts, the applicant clearly wanted to circumvent this step in order to obtain an interim injunction. According to the Regional Court, however, this was an abuse of rights, which is why the Chamber’s order could not be upheld.
By lying, the lawyer has not only breached his professional duty. Much more serious is (attempted) procedural fraud, which can have serious criminal consequences, Section 263 StGB.