BGH on the costs of partially successful warning letters

The German Federal Court of Justice recently issued an interesting decision on questions of costs of a warning letter if the claims asserted in the warning letter are considered by a court to be only partial.

a) An admission of an appeal limited to an actually and legally independent and thus separable part of the entire matter in dispute is admissible and thus effective if the part of the dispute affected by this limitation can be assessed in factual and legal terms independently of the remaining matter in dispute at the time of the admission of the appeal and no contradiction with the incontestable part of the matter in dispute can occur even after a possible remittal of the case. It does not have to be a separate subject matter of the dispute and the affected part of the subject matter of the dispute does not have to be capable of partial judgment at the level of the appellate court.

b) If an infringement of a market conduct regulation consists in withholding material information from the consumer, it is only appreciable within the meaning of Section 3a UWG if the consumer needs the material information withheld from him, depending on the circumstances, in order to make an informed decision and its withholding is likely to cause him to take a transactional decision that would otherwise not
have been taken. The entrepreneur who claims that the consumer does not need essential information withheld from him for a purchase decision and that the withholding of the information cannot cause him to make a different purchase decision has a secondary burden of proof in this respect.

c) If, in a warning notice, the creditor objects to a specifically described conduct, such as a certain advertisement, which he objects to as being anti-competitive under several aspects, the costs for the warning notice are in principle already fully recoverable if the claim proves to be well-founded under one of the aforementioned aspects.
The situation may be different if the interpretation of the warning, for the interpretation of which a cease-and-desist declaration attached thereto and pre-formulated by the creditor can be used, shows that the creditor makes the individual objections the subject of separate attacks, such as when he asserts separate cease-and-desist claims with regard to different advertising statements in an advertisement. In such a case, the warning is only justified and the costs of the warning are only to be reimbursed to a competitor to the extent that the individual complaints are justified.

In addition, the BGH has noted another important point, which shows how urgent it can be, in the case of a warning, to at least commission an experienced lawyer with the preparation of a modified cease-and-desist declaration. This confirms that a warning notice must contain a request for a cease-and-desist declaration with a penalty clause. In this, however, the opponent can also “overshoot the mark”, because if the latter demands more than he is entitled to, this is harmless. The BGH is of the opinion that it is up to the debtor to make the declaration on the basis of the warning and that the debtor does not have to accept the proposal of the warning party. This ruling could well lead to future warning letters in particular demanding more (possibly even hidden in the cease-and-desist declarations) than is legally enforceable. The warning party is not really threatened with a cost consequence.

Therefore, please feel free to send me a warning letter that you have received in advance by e-mail. I will check them free of charge and inform you about the possibilities and further costs.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.