If there is an allegation of copyright infringement, the rights holder will often first issue a warning letter. This gives the alleged infringer the opportunity to end the matter out of court by submitting a cease-and-desist declaration with a penalty clause.

In the event of an unjustified warning: risk of a temporary injunction

If the copyright infringement warning is unjustified, it often makes sense to reply. Often, however, a cease-and-desist declaration should not be issued. The rights holder can then, for example, file an application with the court for an interim injunction.

If the court grants this application, the alleged infringer is obliged to refrain from the reprimanded action (such as printing certain photos) from then on. If the defendant fails to comply with these conditions, the court can impose a fine or even imprisonment to enforce the injunction.

Measure in the event of an impending preliminary injunction in copyright law: submit a protective brief

An interim injunction in copyright law can therefore have far-reaching consequences for the defendant. The defendant can often only prevent such an injunction from being issued by a court, or at least not without an oral hearing, by filing a so-called protective brief.

This is a preventive statement of defense (i.e. to be submitted before an application for a preliminary injunction) in which the alleged infringer attempts to invalidate the application for a preliminary injunction.

Contents of a protective letter in copyright law

In detail, a protective letter in copyright law initially contains the application to reject the issuance of a preliminary injunction. Alternatively, an application should be made not to decide on a corresponding application for an injunction without an oral hearing.

These applications must also be substantiated. The court must be convinced that the requirements for issuing a temporary injunction – predominant probability of copyright infringement and urgency – are not met. To this end, the alleged infringer can describe the facts of the case and name evidence that is already known and attach it to the document. Extensive legal explanations can also be part of the protective letter.

Extensive explanations of the grounds for the application are particularly advantageous if the previous response to the warning was deliberately very brief. Since the opponent does not have access to the content of the protective brief before the application for a preliminary injunction is filed, the opponent can be left „in the dark“ with regard to their own statement of facts and legal argumentation until then.

Procedure for a protective letter in copyright law

While protective writs previously had to be submitted to the individual courts in paper form, they can now also be submitted electronically to the central register of protective writs in accordance with Section 945a ZPO. This is maintained by the Hessian state administration of justice for all federal states at https://schutzschriftenregister.hessen.de. Such a submission has the same effect as a submission to all regional courts in paper form.

However, there is no obligation to use the central register. Protective writs can still be submitted to the courts in paper form. However, due to the time and logistical effort involved, it is advisable to make use of the electronic submission of the protective letter.

Consideration of the protective brief in the event of preliminary injunction proceedings

If a protective brief has been filed, the court is obliged, in the event of an application for a temporary injunction, to take the arguments set out in the brief into account in its decision. The reason for this is the guarantee of the right to be heard (Art. 103 GG). It then decides on the basis of both submissions whether to grant the application for a temporary injunction, reject it or invite the parties to an oral hearing to discuss the facts of the case further.

Even if the court decides to grant the application for a temporary injunction, you often gain an advantage by filing a protective brief: this is because you can learn a lot about the court’s legal and factual opinion from the reasoning. This makes it much easier to assess the chances of further proceedings. In this way, time-consuming and cost-intensive proceedings can be avoided if necessary.

Reimbursement of the costs of a protective letter in copyright law

Compared to ordinary litigation proceedings in copyright law, filing a protective letter is less expensive. Nevertheless, legal and procedural costs (court fees) are incurred as part of the proceedings.

If the application for an interim injunction is rejected by the court or withdrawn by the applicant, the defendant can demand reimbursement of these costs (see Sections 91, 269 ZPO). This applies even if the defendant has not been informed of the receipt of the application for an injunction.

The protective letter in copyright law: Conclusion

Of course, the protective letter in copyright law does not offer all-encompassing protection against the issuing of an interim injunction and its consequences. However, it guarantees that your own legal and factual opinions are taken into account in the court’s decision. Depending on the decision made, conclusions can also be drawn that may be valuable for further procedural action.

In the event of an unjustified accusation of copyright infringement, it is therefore always advisable to seriously consider the possibility of filing a protective letter.