Online traders continue to be exposed to a large number of cease-and-desist letters. Due to the relatively high amounts in dispute, cease-and-desist letters are a very lucrative business. However, if the amount in dispute is too high, the warning is invalid, according to the Dortmund Regional Court. This is a good sign for affected online traders.
When is the amount in dispute too high?
The applicant issued a warning to the defendant with the help of a lawyer due to missing mandatory information according to § 5 TMG, missing information on revocation and missing information and link to the OS platform. The applicant's lawyers set the amount in dispute at € 30,000. The defendant did not submit the cease-and-desist declaration with penalty clause. The Dortmund Regional Court then dismissed the application for an interim injunction.
Excessive amount in dispute in the warning = abusive warning?
According to the Dortmund Regional Court, the warning was ineffective because the warning was based on an amount in dispute that was unreasonable both in terms of the reason and the amount. According to Section 8c (2) No. 3 UWG, which entered into force on 02.12.2020, the assertion of claims under Section 8 (1) UWG is inadmissible if the warning is abusive. And this is the case if a competitor sets the amount in dispute for a warning notice unreasonably high. This was the case here.
Ineffective warning = ineffective application for an interim injunction?
The ineffectiveness of the warning is reflected in the urgent application.
What else was problematic for the applicant?
The Dortmund Regional Court also found that the applicant was not entitled to compensation for legal fees due to a violation of Section 13 (4) no. 1 UWG. Pursuant to Section 13(4) No. 1 UWG, legal fees cannot be claimed if it is only a matter of violations of statutory information and labelling obligations. This was the case here. For this reason, too, the warning was ineffective.
The warning was also ineffective because the defendant was not entitled to demand a contractual penalty pursuant to Section 13a (2) UWG in conjunction with Section 13 (4) No. 1 UWG. § Section 13(4)(1) UWG, the defendant was not entitled to demand a contractual penalty. It was obviously excluded that the defendant had 100 or more employees.
What does the decision of the Dortmund Regional Court mean?
The decision of the Dortmund Regional Court helps all online traders. For those who have been warned, it is once again worthwhile to defend themselves against warnings with the help of a lawyer. A warning notice that is ineffective because the amount in dispute is too high is also unjustified within the meaning of Section 13 (3) UWG. The warned party can therefore demand reimbursement of his own lawyer's costs.
The current UWG imposes considerable formal and substantive legal requirements on a competition law warning. Therefore, in the event of a warning, you should always have a lawyer specialising in intellectual property law or a lawyer specialising in information technology law check whether the warning is justified.
Source: Dortmund Regional Court, decision dated 16.02.2021, ref. no. 10 O 10/21
Please contact us if you need help. We will help you to defend yourself against abusive warnings.
GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and specialist in information technology law