It is disputed in the literature and case law whether a warning is only effective if an original power of attorney is attached to the warning.
In its judgement of 3 December 2008, file number 12 O 393/07, the Regional Court of Düsseldorf (LG Düsseldorf) has now once again decided that a warning notice can only be effective if it is accompanied by an original power of attorney document. This circumstance can have far-reaching consequences for the person issuing the warning and for the person being warned.
In principle, the costs of a justified warning by a lawyer are recoverable if 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 UrhG or if they are necessary expenses under Section 12 (1) sentence 2 UWG or under the principles of management without a mandate. However, the prerequisite for this reimbursement claim is that the warning was justified in terms of form and content.
If the original power of attorney required by the Regional Court of Düsseldorf was not attached to the warning letter, this means that the warning letter issued becomes ineffective if the opposing party (the person being warned) immediately rejects the warning letter of the person being warned pursuant to Section 174 sentence 1 of the German Civil Code due to the lack of the original power of attorney. This in turn means that in the case of an ineffectively issued warning letter, the person issuing the warning letter cannot demand reimbursement of the costs of hiring his lawyer and thus the costs of the warning letter from the person being warned.
The Regional Court of Düsseldorf based its decision on the still current case law of the Higher Regional Court of Düsseldorf (OLG Düsseldorf). In its decisions of 13 July 2000 (GRUR-RR 2001, p. 286), of 19 April 1989 (NJWE-WettbR 1999, p. 263) and after reconsideration in its judgement of 21 November 2006, file number I-20 U 23/06, the OLG Düsseldorf adhered to its opinion that a warning under competition law, like a reminder, is a unilateral legal act to which § 174 ZPO applies accordingly.
Therefore, if you receive a warning notice sent to you without the required original power of attorney, you should immediately contact a specialised lawyer. Since, especially in file sharing cases, warning letters are usually issued without the required original power of attorney, the ruling of the Regional Court of Düsseldorf must always be observed and taken into account when defending against the claims.
Source: Judgment of the Düsseldorf Regional Court of 3.12.2008, file number 12 O 93/07
Goldberg Attorneys at Law
Lawyer Michael Ullrich, LL. M. (Information Law)
E-mail:. m. ullrich@goldberg.de
