In 2014, a retailer registered on a well-known e-commerce platform issued a warning to a competitor for using incorrect withdrawal instructions. The latter responded with a counter warning. He claimed that the retailer issuing the warning had offered printers and corresponding accessories without including the telephone number stated in the legal notice in the withdrawal policy.
Internet retailer warned sees abuse of rights in counter warning
The retailer did not respond to the counter warning and the settlement proposal. His competitor therefore filed an injunction against him. He applied to the court to prohibit the retailer from continuing to sell printers and printer accessories over the Internet without providing the customer with a telephone number for withdrawal. He also proposed a settlement.
The competent court granted the injunction sought by the online retailer. Following an appeal at the Hamm Higher Regional Court, the case finally reached the Federal Court of Justice in Karlsruhe. Here, the retailer sued for injunctive relief primarily claimed that the counter warning was abusive within the meaning of Section 8c UWG (formerly Section 8 (4) sentence 1 UWG) and therefore inadmissible.
Counter warning only to avoid costs?
According to Section 8c UWG, the assertion of claims for injunctive relief is an abuse of rights if the creditor is guided by irrelevant considerations when asserting the claim for injunctive relief. In particular, it is inadmissible if the assertion primarily serves to justify a claim for reimbursement of expenses or costs of legal action against the infringer.
This is precisely what the defendant internet retailer complained about: he stated that the plaintiff had admitted to having liquidity problems. It was therefore obvious that his warning only served to counter the defendant’s justified claims for reimbursement of costs with his own payment claims in order to ultimately avoid payment.
In addition, the counter warning served to prepare a settlement. This is because the letter from the retailer did not contain a specific description of the conduct demanded by the plaintiff. Furthermore, no contractual penalty was formulated in the counter warning in the event of infringement.
BGH does not consider counter warning an abuse of rights
In its ruling of January 21, 2021 (case reference: I ZR 17/18), the BGH did not follow this argument of the defendant. The Senate stated that the fact that the plaintiff had issued a counter warning and demanded reimbursement of the costs incurred by it indicated that it did not want to be worse off than the defendant, which had previously issued a warning to the plaintiff.
According to the judges in Karlsruhe, this motivation is not sufficient for the assumption of an abuse of rights. Nor does the fact that the retailer issuing the counter warning did not enclose a pre-formulated cease-and-desist declaration constitute an abuse of rights. It also had to be taken into account that the retailer had not only issued a warning to its competitor, but had also asserted the injunction claim in court.