In practice, it is often difficult to prove an abuse of rights in the case of warnings. A great deal of information must be collected to prove an abuse of rights. Gathering the required information is often extremely time-consuming and not possible within the period in which the cease-and-desist declaration is to be submitted.
The Munich Regional Court ruled on January 31, 2017 (Ref.: 33 O 20356/15) on how a company can still defend itself against the declaration made.
If, after a cease-and-desist declaration has been issued, it becomes apparent that the warning was abusive (Section 8 (4) sentence 1 UWG), the cease-and-desist declaration can be terminated. However, according to the Regional Court, there is no right to claim the contractual penalty for the past, as this claim is also an abuse of rights.
Warning letter against 70 listed insurance agents of a principal
In the case to be decided, two companies that sold insurance and financial services faced each other. The defendant c. F. AG had listed insurance agents with their contact details on a website. The listing took place on a separate, uniformly designed subpage with its own individual imprint. However, the insurance agents were increasingly referred to as insurance brokers.
The opposing company then sent individual warnings to around 70 listed insurance agents and demanded reimbursement of the legal fees it had incurred.
Munich Regional Court: Mass warning inadmissible
However, the Munich Regional Court has now ruled that the mass warning in this case was an abuse of rights. It violated the provisions of Section 8 para. 4 sentence 1 UWG, which covers the inadmissibility of warnings under competition law.
According to this standard, an abuse of rights exists in particular if the claimant pursues predominantly irrelevant interests and objectives that are not worthy of protection in themselves. According to the Regional Court, these objectives must also represent the actual driving force and the dominant motive for initiating proceedings in order to constitute an abuse of rights.
Abuse of rights: Cheaper and equally effective means were available
An indication of abuse is also that the claimant has more sparing means at his disposal than those he uses. A further indication exists if the commissioned lawyer conducts the warning business “on his own initiative”, in particular if he first investigates infringements of competition law or fully or partially indemnifies the client from the cost risk.
In the present case, it was possible for the plaintiff to turn against the principal – c. F. AG – and warn it alone. In the opinion of the court, this approach was the gentler and no less effective option. In this way, it would also not have had to bear the fee risk of a total of 52,150 euros.
Designation as an insurance broker only a minor infringement of competition law
The reason for the warning also plays a role in the abuse of rights. The statement in the legal notice that the company is an insurance broker – and not an insurance agent – is to be classified as a minor infringement of competition law. This is because in most cases, the target audience does not differentiate between insurance brokers and insurance agents.
Claiming contractual penalties is also an abuse of law
The contractual penalty claims pursued under Section 339 p. 2 BGB in connection with the respective declaration to cease and desist is also inadmissible. The termination of the cease and desist claim is only effective for the future, so that any contractual penalty claim from the past continues to exist in principle.
However, the assertion violates the principle of good faith and is also an abuse of rights, Section 242 BGB.