A warning without the risk of legal costs is an abuse of rights

According to the Regional Court of Frankfurt a.M., a cease-and-desist letter without the risk of legal fees is an abuse of rights.

What had happened?

An eBay trader was warned, among other things, because of a missing reference to the OS platform and because of a faulty cancellation policy.

The warning lawyer warned the eBay trader on behalf of an alleged other party for the same infringements and demanded a further cease-and-desist declaration.

The eBay trader did not submit the required cease-and-desist declaration and filed an objection against the interim injunction that was then issued. The Frankfurt Regional Court (LG Frankfurt a.M.) lifted the preliminary injunction due to the abusive assertion of injunctive relief.

When is a warning notice abusive of the law?

The Regional Court of Frankfurt a.M. found that in the case at hand there were sufficient indications of abuse of rights on the part of the plaintiff or his lawyer.

If the lawyer is exempted from costs

An essential indication was that in the course of the proceedings it remained undisputed that the represented plaintiff was a trader with low sales activity and low turnover, and that the lawyer issuing the warning had indemnified the plaintiff against the costs of his legal work. When the opponents did not pay the warning letters, the lawyer waived the plaintiff's legal fees.

Independent, planned action by the lawyer "on his own".

Furthermore, the Regional Court of Frankfurt a.M. found that the lawyer apparently acted on his own initiative. This was done either through an "abstract blank power of attorney" or entirely without the knowledge of the allegedly represented parties.

What does the decision of the LG Frankfurt a.M. mean?

Even though the decision of the LG Frankfurt a.M. is already a few months old, the fundamental issue is more topical than ever. In view of the COVID 19 pandemic, we consider it likely that traders and/or advisors are trying to compensate for lost sales in an inadmissible way.

In this respect, it is still worthwhile to have warning notices carefully examined and to defend yourself against them if necessary. We will help you with this and will be happy to advise you in the entire field of intellectual property law.

Source: LG Frankfurt a.M. of 13.02.2018, Ref. 3-06 O 118/17

GoldbergUllrich Lawyers 2020

Julius Oberste-Dommes LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law

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