I have already dealt with the topic of abusive cease-and-desist letters here on the blog a few times, and the basic questions have actually been clarified in literature and case law.
In a ruling that has now become known, the Federal Court of Justice has finally confirmed the essentials. Thus, the latter decided as follows:
a) Abusive prosecution within the meaning of Sec. 8 para. 4 sentence 1 UWG exists in principle if a large number of warnings entail a prosecution effort that threatens the existence of the warning party in relation to its annual profit and if it has no significant economic interest in
the prosecution. b) In the overall assessment of the relevant circumstances required for the examination of abusive legal action through mass warnings against retailers, it may be necessary to take into account that the warning party has already obtained an interim injunction against the manufacturer due to the
advertising statements it is complaining about. c) If there is no economically significant interest in the legal action, the indicative effect of a very extensive warning activity in relation to the commercial activity for an abuse of rights is not eliminated by the fact that the warning party has previously endeavored to remedy the competition violations simply and inexpensively
without excessive warning activity.
However, it remains to be seen whether this decision will really stem the tide of cease-and-desist letters and put the actually good and clever means of cease-and-desist letters in a better light again.
The reason for this is that the question of whether a warning is abusive is ultimately a question of a judicial determination. So, if one has the indications of a possible abuse of rights, which is already not self-evident, one must also defend this opinion in court, and since it would be an objection, for example, in the context of injunction proceedings, one must also prove the circumstances. Of course, this involves a certain cost risk that not all clients want to take on.
The advantage, if you can call it that, is that any damage caused by a warning or by an injunction can of course be claimed against the plaintiff.
