It is disputed in legal literature and jurisprudence whether a cease and desist letter is only effective if an original power of attorney document is attached to it.
The District Court of Düsseldorf (LG Düsseldorf) has again ruled in its judgment of December 3, 2008, file number 12 O 393/07, that a cease and desist letter can only be effective if an original power of attorney document was attached to it. This circumstance can have far-reaching consequences for both the sender and the recipient of a cease and desist letter.
In principle, the costs of a justified legal cease and desist letter are recoverable insofar as they are to be regarded as costs of appropriate legal action within the scope of the claim for damages under Section 97 (1) sentence 1 of the Copyright Act (UrhG) or if they constitute necessary expenses according to Section 12 (1) sentence 2 of the Unfair Competition Act (UWG) or the principles of agency without mandate (negotiorum gestio). A prerequisite for this claim for reimbursement, however, is that the cease and desist letter was justified in form and content.
Therefore, if the original power of attorney document required by the District Court of Düsseldorf was not attached to the cease and desist letter, this means that the issued cease and desist letter becomes ineffective if the opposing party (the recipient of the cease and desist letter) immediately rejects the sender's cease and desist letter in accordance with Section 174 sentence 1 of the German Civil Code (BGB) due to the missing original power of attorney. This, in turn, means that in the event of an ineffectively issued cease and desist letter, the sender cannot claim reimbursement from the recipient for the costs of engaging their lawyer, and thus not the cease and desist costs.
In its decision, the District Court of Düsseldorf aligned itself with the still current jurisprudence of the Higher Regional Court of Düsseldorf (OLG Düsseldorf). The OLG Düsseldorf, in its decisions of July 13, 2000 (GRUR-RR 2001, p. 286), April 19, 1989 (NJWE-WettbR 1999, p. 263), and after a renewed review in its judgment of november 21, 2006, file number I-20 U 23/06, maintained its view that a cease and desist letter under competition law, like a reminder, is a unilateral legal act to which Section 174 of the Code of Civil Procedure (ZPO) applies mutatis mutandis.
Therefore, if you receive a cease and desist letter sent to you without the required original power of attorney document, you should immediately contact a specialized lawyer. Since cease and desist letters, particularly in file-sharing cases, are usually issued without the required original power of attorney, the judgment of the District Court of Düsseldorf must always be observed and taken into account when defending against such claims.
Source: Judgment of the District Court of Düsseldorf of December 3, 2008, file number 12 O 93/07
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Email:. m.ullrich@goldberg.de
