Should we ever sign a declaration of injunction?

Today I would like to raise one issue, because many are hardly on their radar. That is the question of whether an injunction should be signed, which is part of a competition law or a copyright warning, even if the claim alleged therein appears to have been made and no other things, such as a possible abuse of rights, speak against a signature.

Of course, the information on this page remains unchanged.

• Don’t let short deadlines put you under pressure.
• Do not sign the injunction attached to the warning without having checked it in advance. Even in the case of a legitimate warning, numerous traps and problems may lurk in the declaration of injunction.
• Never contact the reminder in advance, either by phone or email.

A warning must always be properly examined and considered both for legal and business reasons. Even if the system of warning letters/declarations to cease and desist can make sense, the risks of a declaration to cease and desist should not be overlooked (see this article). This is particularly true in the commercial environment, i.e. if you have received a warning as the operator of an online shop or other online service. In a purely private environment, for example in file sharing issues, the risk assessment could come to a different conclusion.

In the past, the reason mentioned in this article often led to a situation where, after signing a cease-and-desist declaration, there was no longer a dispute about one’s own claim in the context of an interim injunction, but at some point the big hammer came down on the client because the opponent was now claiming contractual penalties, some of which were even unintentionally caused by the signatory. By the way, third-party retailers on Amazon are particularly predestined for this type of procedure, because Amazon is hardly manageable for legally compliant behavior, even for professionals (for this you only have to look for a little in the posts in my blog). In addition, there is hardly a first first penalty that would be “cheaper” than an injunction procedure. Many Members certainly agree that legal practice is now often much more concerned with contractual penalties than with regulatory procedures.

Of course, this article did not discourage the intention in all cases and in principle from signing a declaration of injunction. However, the risks and legal issues must be examined in detail and the future situation must be considered as entrepreneurs. Hardly anyone should know how their own economic situation will develop over the next 30 years. Therefore, a way of thinking in the form “Then I must not commit the violation again!” is often too short-thought and does not consider the enormous legal and temporal dimension of an injunction as a contract.

Rather, the article is intended to warn against the fact that the hint often found via Google to sign an injunction, perhaps modified, in order to prevent an oh so bad injunction, does not mean in many company situations. such good advice is how it is always presented. The risk of an injunction is always underestimated in return.

In response to the question from the title of the article, there is therefore no real “yes” or “no”, as many information on the Internet on the subject of warnings suggests. Let me advise you and we will find a viable solution for the future, which considers the specific situation, the personal risk and the financial situation as a single entity.

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.