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Excessive and unjustified warning does not lead to liability of the warning party

This post is also available in: Deutsch

The BGH has made an interesting judgment, which I would like to leave simply once in the with the guiding principles:

a) If an industrial property right warning is partially justified, but its scope exceeds what the right holder can justifiably demand, this shall not constitute an encroachment on the right to the established and practiced business if the wrongfully complained conduct cannot reasonably be expected from the warned party according to the overall circumstances.

b) Insofar as the property right warning addressed to a customer is unjustified, this does not constitute an encroachment on the right to the established and practiced business operations of the manufacturer, if it lacks the suitability to impair the latter’s business operations in this respect.

The Federal Court of Justice thus reduces the risk for those issuing warning letters to approach opponents with excessive claims. Of course, a warning letter is liable for court and attorney’s fees due to a warning letter that is excessive. However, the Federal Court of Justice rules out any further claims that might arise as a result of restrictions on economic development opportunities.

The entire ruling can be found here. It should be noted, however, that this is a case that has been ongoing for a total of 13 years and is still continuing at the Higher Regional Court with regard to attorney’s fees. In addition, it is a rather special construction, in which the plaintiff as a distribution company, at its own expense, has taken over the legal defense of associated, warned, dealers and which the warning company has filed for insolvency in the meantime.

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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