OLG Hamburg
3 U 105/18
JUDGMENT
announced on 21.03.2019
In the matter
A. GmbH, represented by the managing director,
– Applicant and appellant –
Authorized representatives: Attorneys at law
vs.
B. GmbH, represented by the managing director,
– Defendant and appellant –
Authorized representatives: Attorneys at law
the Hanseatic Higher Regional Court – 3rd Civil Senate – rules by the judges on the basis of the oral hearing of 28.02.2019:
Tenor:
On appeal by the defendant, the judgment of the Hamburg Regional Court, Civil Chamber 15, dated January 10, 2018, case no. 315 O 348/17, is amended:
The interim injunction issued by the Hamburg Regional Court on September 18, 2017 is lifted and the application for an injunction is dismissed.
The costs of the legal dispute shall be borne by the applicant.
This judgment is provisionally enforceable without the provision of security.
Reasons:
A.
The applicant is claiming injunctive relief against the defendant under the law on advertising for medicinal products and competition law.
The parties are competing pharmaceutical companies. The applicant markets, inter alia, the drug N.® (active ingredient: FG.), which is used to shorten the duration of neutropenia and to reduce the frequency of neutropenic fever in patients who are being treated for a malignant disease with cytotoxic chemotherapy (Annex ASt 1/specialized information). The defendant markets the medicinal product L. ® (active ingredient: LiFG.), which has been approved for the same indication (Annex ASt 2/Professional information).
From June 29 to July 1, 2017, the 37th annual conference of the German Society for Senology took place in Berlin. In the course of this conference, the applicant became aware of an advertising card of the defendant, which was handed out there (Annexes ASt 3, ASt 8 and ASt 9), at the latest on July 1, 2017.
In a letter dated August 1, 2017, the applicant issued a warning to the defendant regarding various advertising claims used in the advertisement, setting a deadline of August 4, 2017, 12:00 noon. The reason given was that the information was misleading (Annex ASt 5). The respondent’s request by telephone to extend the deadline to August 8, 2017, was only complied with by the applicant to the extent that the deadline set for August 4, 2017, 12:00 noon, was extended to August 4, 2017, midnight. In a reply dated August 4, 2017, the defendant issued a declaration to cease and desist with a penalty clause with regard to some of the criticized advertising claims. In all other respects, however, the asserted claims were rejected (Annex ASt 6). The applicant had the partial declaration to cease and desist accepted in a letter dated August 7, 2017 (Annex ASt 7).
Subsequently, on August 10, 2017, the applicant filed the present application for an injunction with the Hamburg Regional Court.
On August 23, 2017, the Chamber informed the applicant by telephone that, according to the note dated August 23, 2017, which is on file, the application for an injunction was currently inconclusive. Relevant parts of the connecting annexes were not sufficiently legible, e.g. the footnotes. The technical terms and graphics used are not self-evident and therefore need to be explained. The understanding of the targeted traffic is neither justified nor is it indicated why it is wrong. In addition, the initial credibility required for the unilateral decree was lacking. A statement is expected by September 1, 2017. In a further telephone call on August 31, 2017, the applicant’s representatives informed the court that submissions were still to be made, but that the applicant’s key employee would not return from vacation until Monday, September 4, 2017. A written submission would then be made at short notice. Subsequently, the representatives of the applicant made further submissions in a written submission dated September 6, 2017.
Subsequently, the Hamburg Regional Court issued the order of September 18, 2017, in accordance with the application, prohibiting the defendant from advertising the drug L. ® (active ingredient LiFG.) and/or having it advertised with the following statements, on pain of statutory fines:
1. with the following representation
– Display of advertising –
and/or
2. “LiFG.® – The long-acting glycoPEGylated G-CSF with the unique molecular structure and characteristic kinetics2
and/or
3. “Increased resistance to degradation by elastase”
and/or
4. “Pharmacokinetic profile with high drug concentration in the nadir”
and/or
5. with the following representation
– Display of advertising –
in each case as shown in the ANNEX.
The defendant objected to this with its objection of November 13, 2017. In a letter dated the same day, the defendant submitted a declaration to cease and desist with a penalty clause with regard to the prohibition under I. 2 (Annex AG 8).
In support of its objection, the defendant argued that there were no grounds for an injunction. The applicant had shown through her own hesitant behavior that the matter was not urgent for her. However, there was also no entitlement to an injunction, as the statements in dispute were not misleading.
The defendant initially filed an application,
annul the interim injunction and reject the application for its issuance.
The applicant initially filed an application,
confirm the preliminary injunction of September 18, 2017.
The applicant argued that the presumption of urgency had not been rebutted. It had pursued the matter sufficiently quickly. In addition, the information in dispute was misleading.
At the opposition hearing on January 10, 2018, the parties unanimously declared the legal dispute to be settled with regard to the application for injunctive relief under I. 2.
The defendant subsequently filed an application,
annul the remainder of the interim injunction of September 18, 2017 and reject the application for its issuance.
Applicant has applied for,
confirm the rest of the interim injunction.
By judgment of January 10, 2018, the Regional Court confirmed the order of September 18, 2017 with regard to the remaining items I. 1., I. 3., I. 4., I. 5. and II. and also ordered the defendant to pay the further costs of the legal dispute.
The defendant appealed against this ruling with its appeal dated June 6, 2018, which it lodged and substantiated in due form and time, repeating and expanding on its arguments at first instance.
The defendant applies,
the judgment of the Regional Court of Hamburg dated January 10, 2018, Ref. 315 O 348/17, and to revoke the interim injunction of September 18, 2017, Ref. 315 O 348/17, dismissing the application for its issuance.
The applicant requests,
dismiss the appeal.
The applicant defends the judgment of the Regional Court by repeating and expanding on her submissions at first instance.
For further details of the facts of the case and the dispute, reference is made to the contested decision and the written submissions submitted by the parties to the file together with the annexes and the minutes of the appeal hearing of February 28, 2019.
B.
The defendant’s appeal is admissible and well-founded.
I.
In the present case, there is already no reason for an injunction, as the presumption of urgency pursuant to Section 12 para. 2 UWG has been rebutted by the applicant’s hesitant action.
1. the presumption of urgency is rebutted if the applicant himself indicates by his conduct that “he is not in a hurry” (established case-law. BGH, GRUR 2000, 151, 152 – Späte Urteilsbegründung; OLG Munich, WRP 2008, 972, 976; OLG Hamburg, GRUR-RR 2010, 57; OLG Koblenz, GRUR 2011, 451, 452; OLG Celle, WRP 2014, 477, 478; KG, GRUR-RR 2015, 181, 182; OLG Stuttgart, WRP 2018, 369, para. 41). This is the case if he waits for a longer period of time although he knows or is grossly negligent in not knowing the infringement of competition law and the person responsible (Köhler/Bornkamm/Feddersen/Köhler, UWG, 37th edition, 2019, UWG Section 12 para. 3.15c). When assessing the question of whether a party has pursued the proceedings with the necessary vigor and thus documented its interest in urgent legal enforcement in summary proceedings, an overall assessment of its procedural and pre-litigation conduct is required (OLG Hamburg, WRP 2013, 196, 198, juris para. 28).
The assessment of the period of permissible waiting is controversial. Some higher regional courts apply rigid time limits (see the overviews in Köhler/Bornkamm/Feddersen/Köhler, UWG, 37th edition, 2019, Section 12 para. 3.15b; in Harte/Henning/Retzer, UWG, 4th edition, 2016, Annex to Section 12 para. 917 et seq.), whereby the tendency of this case law is to apply a time limit of 1 month as a rule.
However, it seems appropriate to always carry out a case-by-case assessment (taking into account the nature of the infringement, the need for investigations, the opponent’s reaction to a warning, etc.) (see OLG Hamburg, GRUR-RR 2008, 366, 367 OLG Hamburg, WRP 2007, 675 OLG Cologne, GRUR 1993, 567 OLG Cologne, GRUR 1993, 685; OLG Brandenburg, WRP 1998, 97).
The decisions of the Higher Regional Court of Hamburg on the time requirements for sufficiently swift action by the claimant range from approx. 6 to 8 weeks between knowledge of the infringement and the filing of the application for an injunction, whereby the claimant is required to act all the more swiftly after the rejection of the warning letter if a lot of time has already passed between knowledge of the infringement and the issuing of the warning letter.
A period of approx. 1 month from knowledge until the warning plus a further 2 weeks until the application for an injunction has not “yet” been considered to be detrimental to urgency (OLG Hamburg, MMR 2010, 178, juris para. 77). However, a period of 5 ½ weeks of absolute inactivity between knowledge and warning and – in the absence of a warning – a period of 6 weeks until the filing of the application for an injunction have already been considered to be detrimental to urgency (OLG Hamburg, MD (VSW) 2009, 766, juris para. 72 and OLG Hamburg, WRP 2007, 675, 677, juris para. 19). The applicant must also proceed swiftly after rejecting the warning. If the applicant allows almost one month to pass before filing the application for an injunction after the rejection of the warning notice, despite the promptness of the warning notice, this may be detrimental to urgency (OLG Hamburg, GRUR-RR 2008, 366, juris para. 31 f.).
In the area of advertising for therapeutic products, a period of approx. 6 weeks between receipt of the challenged advertising documents and the warning – also in view of the considerable difficulties of the content issues to be assessed in the specific case and in view of a generally more generous standard in this area in the interest of proper preparation of the injunction proceedings – is certainly already in the “border area of delayed treatment”. However, if there is a further period of approx. 2 weeks between the warning and the filing of the application for an injunction, this has not yet been considered to be harmless in terms of urgency in the context of the required overall assessment (OLG Hamburg, WRP 2013, 196, 199, juris para. 32).
2. 40 days, i.e. almost 6 weeks, lie between the applicant becoming aware of the infringement of competition law, which occurred on July 1, 2017 at the latest, and the filing of the application for an injunction with the Regional Court on August 10, 2018. Of this period, 31 days, i.e. around 4 ½ weeks, are attributable to the time between the applicant becoming aware of the infringement and the issuing of the warning notice on August 1, 2017, without it being clear why the applicant took so long to issue the warning notice, taking into account the points at issue in this case. In addition, the parties were already involved in competition law disputes regarding their competing products, which are also relevant here (Annex AG 6).
In addition, in this case – unlike in the cases already decided above – there was a further delay of 5 ½ weeks between the filing of the application for an injunction on August 10, 2017 and the issuance of the present order on September 18, 2017, for which the applicant is at least partially responsible. It is true that the Regional Court’s indication that the application for an injunction was still inconclusive was only made on August 23, 2017, i.e. almost two weeks after the application was filed. However, the applicant did not supplement its submissions until September 6, 2017, i.e. 14 days (2 weeks) after this notice was issued.
This proves to be too long in view of the delays that had already occurred, in particular the time that had elapsed between obtaining knowledge and the warning letter, when considering the overall situation. If the applicant’s case had been urgent, it should have pressed ahead with the supplementary submission requested by the Regional Court with the urgency required by the fact that it had already been aware of the advertising at issue for a long time and should have made the supplementary submission without delay. This did not happen, whereby it can be left open here whether the applicant can rely at all on the supplementary submission requested by the Regional Court with regard to the urgency pursuant to Section 12 para. 2 UWG, the applicant could even refer to the deadline specified by the Regional Court, September 1, 2017, by which the submission was to be supplemented.
Sufficiently comprehensible reasons as to why the applicant did not make further submissions without delay cannot be established. Insofar as the applicant has stated that a relevant employee was still on vacation, this does not lead to a different assessment. In this respect, it is not apparent that this circumstance led or had to lead to a delay in the preparation of the supplementary submission. The affidavit of the employee Dr. S. dated September 6, 2017, submitted as Annex ASt 10, cannot justify this.
Consequently, the presumption of urgency under Section 12 para. 2 UWG is rebutted, so that the defendant’s appeal is successful.
II.
The decision on costs is based on section 91 para. 1 ZPO. The ruling on enforceability is based on sections 708 no. 6, 713 ZPO.
(OLG Hamburg judgment of 21.3.2019 – 3 U 105/18, BeckRS 2019, 9190, beck-online)