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BGH for the termination of a declaration of injunction

This post is also available in: Deutsch

The Federal Court of Justice has recently taken an interesting decision on the question of dismissing a declaration of injunction. In fact, one should be very careful with the signing of declarations of injunctions, as I have described in this article. In principle, declarations of injunctions cannot simply be cancelled, as I explained in this post.

Now, however, the Federal Court of Justice has positioned itself in a special case and decided:


(a) abusive behaviour in the event of a warning may constitute an important reason for the termination of an injunction agreement based on the warning.

b) In the case of an injunction concluded on the basis of an abusive warning, the assertion of contractual penalties for infringements,
committed by the debtor before the termination of the contract, the objection of abuse of rights in accordance with Section 242 of the German Civil Code (BGB).


At its core, it was about two competitors in the electronics sector. The plaintiff here admonishes violations of the Electrical and Electronic Equipment Act of 16 March 2005 (ElektroG aF) and of the laws in force in Paragraph 3 of the 2 Sentence 1 no. 4 Electrical and electronic equipment-substance regulation of 13 April 2013 (ElektroStoffV aF) to affixing the CE marking. Under the On 14 May 2014, the applicant submitted to the defendant a declaration of injunction, which was subject to a criminal offence, which it accepted on 2 June 2014. After a series of test purchases, the applicant claims a total of EUR 36,000 in contractual penalties. Both the regional court, the Chamber Court and only the BGH considered the warning, the assertion of contractual damages and the entire conduct to be abused. In doing so, the Court of Appeal relied on a rereinforced legal opinion that abuse of rights within the meaning of Paragraph 8(8) of the Court of Justice was 4 UWG must be presumed if the dominant motive of the creditor in asserting the right to injunctive relief are unrelated objectives, such as the interest in obtaining fees or burdening the opponent with the highest possible legal costs or, in general, harming him. An indication of abusive prosecution may arise, inter alia, from the fact that the warning activity is not in a reasonable economic relationship with the commercial activity of the admonisher.

Although the judgment clarifies some important points, the problem is bordered by a large grey zone, as well as not to be underestimated evidence, so that an action should not take place without advice, so that it is not subsequently injunctive relief.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.


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