The Higher Regional Court of Koblenz has ruled that the debtor must bear the costs of the legal dispute if an out-of-court warning is followed by an acknowledgement in interim injunction proceedings (decision of October 23, 2017 – 9 U 895/17).
Warning due to infringement of competition law
The defendant had received an out-of-court warning from the applicant due to an infringement of competition law. The letter threatened legal action in the event that a cease-and-desist declaration subject to penalties was not issued.
The defendant’s lawyer then contacted the applicant and asked for a tacit extension of one week. However, the applicant initially did not respond to this letter. The defendant then issued a counter warning, whereupon the lawyers of both parties communicated unsuccessfully on the matter.
Acknowledgment in preliminary injunction proceedings
As a next step, the applicant initiated preliminary injunction proceedings. The claim was recognized by the defendant without a hearing. However, the defendant did not want to bear the costs of the legal dispute under any circumstances.
Warning – the defendant bears the legal costs
In the opinion of the Koblenz judges, the defendant also had to bear the costs of the legal dispute in this case. This is because, in principle, the warned party bears the risk of legal proceedings if it allows the deadline set for it to expire and does not submit a cease-and-desist declaration. This must also apply if the parties have been unsuccessful in out-of-court negotiations.
The requirement of an immediate acknowledgement pursuant to Section 93 ZPO was not met. § Section 93 ZPO were not met, as the defendant had initiated the preliminary injunction proceedings by not signing the declaration to cease and desist. After the failed negotiations, the applicant could not assume that she would be able to enforce the claim for injunctive relief without initiating court proceedings.
No trust worthy of protection after failed negotiations
Nor could the prior negotiation between the two lawyers lead to any trust worthy of protection on the part of the defendant. Furthermore, as the defendant, it could not rely on the claimant taking a final position on the settlement offer after the deadline had expired before taking legal action. Especially since the applicant had already announced the legal steps in her warning letter.
The court emphasizes that lawyers must be aware of the risk of declarations to cease and desist being issued too late. Also against this background, the applicant was not required to negotiate with the defendant again out of court before applying for the preliminary injunction.
Caution with warnings
This case also illustrates the complexity and dangers of a warning letter. If you do not react quickly to the usually very complex cease-and-desist declarations, the warned party is threatened with further costs of legal action. However, it is also not advisable to sign a pre-formulated cease-and-desist declaration too quickly. This is because these often go further than necessary and can lead to a high contractual penalty in the event of another infringement.