In its judgment of March 21, 2023, Case No. 31 O 118/22, the Cologne Regional Court ruled that a cease-and-desist agreement with IDO Verband e.V. can be terminated due to the fact that the basis of the agreement no longer applies. The Cologne Regional Court did not award claims for repayment of the contractual penalty, the lump-sum costs, and the attorney's fees for the termination that were asserted at the same time.
What was it about?
The plaintiff had concluded a cease-and-desist agreement with the IDO on August 31, 2015 in response to the IDO's warning. The plaintiff also paid the lump sum for costs in the amount of € 232.50. On January 20, 2022, the IDO asserted a contractual penalty against the plaintiff. With our help, the IDO then accepted a contractual penalty in the amount of €1,000.
Does the IDO still have the right to act?
Since December 2, 2020, associations with legal capacity for the promotion of commercial or self-employed professional interests have only been authorized to assert claims for injunctive relief pursuant to Section 8 (3) No. 2 UWG if they are registered in the list of qualified trade associations pursuant to Section 8b UWG.
As of March 21, 2023, the IDO is not registered in the list of qualified trade associations according to Section 8b UWG. For this reason, the IDO has lacked the active legitimation for the assertion of injunctive relief since 02.12.2020.
Can you terminate the cease-and-desist agreement with the IDO due to the lack of active legitimacy?
According to the LG Cologne: yes!
On March 15, 2022, we terminated the cease-and-desist agreement with the IDO without notice on behalf of the plaintiff due to the IDO's lack of legal standing. Rightly so, as the Cologne Regional Court found.
According to the Cologne Regional Court, the IDO's lack of right to act leads in any case to a cessation of the basis of the transaction. This cessation of the basis of the business entitles to an extraordinary termination without notice. The Cologne Regional Court sees itself here in line with the previous case law of the Federal Court of Justice.
Why can't you ask for a refund from the IDO?
According to the Cologne Regional Court, there is no basis for a claim for repayment of the lump sum and for the contractual penalty. This would arise neither directly from the Unfair Competition Act (UWG) nor from Section 823 of the German Civil Code (BGB).
Legal fees could also not be claimed. Despite the complex legal matter, it would have been reasonable for the plaintiff to issue the termination without notice itself.
What does the legal opinion of the Cologne Regional Court mean for you?
The legal opinion of the Regional Court of Cologne increases your chances of withdrawing from the cease-and-desist agreement with the IDO and asserting this in court. After that, you will no longer be at risk from the IDO. The IDO is currently not allowed to issue cease-and-desist letters and will probably not be able to do so in the future.
This applies at least if you have already issued an extraordinary termination without notice. But even if you have not yet taken such a step, we still consider extraordinary termination without notice to be possible now.
Talk to us! We will take action against the IDO together with you!
GoldbergUllrich Lawyers 2023
Julius Oberste-Dommes LL.M. (Information Law)
Specialist lawyer for information technology law