In its decision of September 2, 2016 (judgment of September 2, 2016 – 5 U 16/16), the Berlin Court of Appeal commented on the scope of a modified cease-and-desist declaration limited to the cautioned act. If the declaration is only issued by the warned party to a limited extent, this does not eliminate the risk of repetition with regard to similar acts.
Inadmissible advertising with professional recommendations for medicinal products
The warned company advertised, among other things, with an advertising message in accordance with. §§ 8, 3, 3a UWG i.V.m. § 11 Abs. 1 sentence 1 no. 2 HWG, which is inadmissible under competition law.
A competitor requested the advertising company to refrain from such advertising and to issue a cease-and-desist declaration with a penalty clause regarding advertising with professional recommendations for all medicines.
Warned company issues modified cease-and-desist declaration
However, the company only provided the required declaration to a limited extent, namely only in relation to the two specifically advertised medicines. It was of the opinion that a claim for injunctive relief only actually existed with regard to these products.
However, this cease-and-desist declaration did not go far enough for the competitors, so they applied to the competent court for a temporary injunction. This was intended to prohibit the advertising company from advertising all other pharmaceuticals under threat of a fine or imprisonment. The Berlin Regional Court then also issued the requested injunction – with the exception of the two medicines for which the advertising company had already issued a declaration to cease and desist. In this respect, the risk of repetition had already been eliminated.
KG Berlin: modified cease-and-desist declaration only partially eliminates the risk of repetition
In the appeal before the KG Berlin, the parties continued to argue about the scope of the cease-and-desist declaration and the extent to which it had already eliminated the risk of repetition. In its reasoning, the KG Berlin followed the statements of the LG Berlin and granted the request of the competitor issuing the warning. If the warned company – as in the present case – only submitted a modified cease-and-desist declaration, it also only eliminated the risk of repetition with regard to the medicinal products mentioned in the cease-and-desist declaration. However, the actual claim for injunctive relief includes advertising with all medicinal products.
Do not submit modified cease-and-desist declarations without checking them!
As the decision of the Berlin District Court shows, if a pre-formulated cease-and-desist declaration is modified in person, there is a risk that the risk of repetition will not be sufficiently eliminated.
As a rule, it is sufficient to submit to the specific form of infringement mentioned. However, the declaration to cease and desist must not only cover the cautioned act, but also essentially similar acts. Any doubts in this regard are always at the expense of the declaring party. If a pre-formulated cease-and-desist declaration is to be amended, it should always be made clear that the declaration should also cover the essentially identical acts. A precise examination by a legal expert is indispensable in many cases.