Why are temporary injunctions lapsing
Temporary injunction: everything important at a glance
In this article you will find out everything you need to know about injunctions. We explain what an injunction is and give tips on how to react, including their respective advantages and disadvantages.
I. What is an injunction?
If legal disputes arise in the area of commercial legal protection, claims are usually initially asserted out of court by means of a warning.
example: Brand owner A discovers that company B is using a very similar brand for the same goods. The brand "B" was registered chronologically after the brand "A". The trademark owner A then issues a trademark warning.
If the person warned does not meet the requirements specified in the warning, the person who has been warned has the option, in the case of certain claims, instead of a lengthy and expensive lawsuit in one judicialUrgent procedure to obtain an injunction.
The is particularly relevant for practiceInjunctive relief. If the admonished person does not submit a declaration of cease and desist, or if he does not make an adequate declaration of cease and desist from a legal perspective Risk of repetition. Simply eliminating the alleged legal violation is not enough.
1. Where do I get an injunction?
In order to obtain an injunction, one must submit an application to the competent court for an injunction.
- Local responsibility is the court which would have jurisdiction in the main matter (ie in the case of a "normal" lawsuit) (§ 937 ZPO). In the event of legal violations on the Internet, depending on the situation of the case, the flying place of jurisdiction can intervene, which means that you can choose almost freely at which court the application for an injunction is submitted.
- Which dish factually responsible depends primarily on the amount in dispute. In the event of an amount in dispute of up to 5,000 euros, the district court is usually responsible, in the case of a higher amount in dispute, the regional court. But there are also responsibilities that are independent of the value of the dispute. In competition disputes, for example, the regional court is always responsible in the first instance, regardless of the amount in dispute (Section 13 UWG).
- The functional responsibility ultimately means which department, chamber or senate is responsible internally for the decision on the application for an injunction, e.g. the chamber for commercial matters in competition law disputes.
Danger: If the application for an injunction has to be submitted to the regional court, exists Compulsory lawyer. The application for an injunction must be submitted by a lawyer.
2. How quickly will a decision be made?
Often, injunctions are issued on application within a few days by court order, namely regularlywithout an oral hearing and without hearing the debtor beforehand.
Update: According to the case law of the Federal Constitutional Court, provisional injunctions in press and expression law as well as (in principle also in) competition law may no longer be issued without an oral hearing if the request for injunction deviates from the claims asserted with the warning; otherwise there would be a violation of the right to procedural equality of arms.
If the person concerned fears an unjustified injunction, there is the possibility of submitting a protective letter. If the court considers the protective letter to be (possibly) well-founded, it will reject the application for an injunction or at least schedule an oral hearing.
Example of an injunction issued by resolution, here from the area of trademark law
The prerequisite for the success of an injunction is that
- the applicant one Right of disposal has against the defendant,
- a Reason for disposal consists
- and the claimant the facts giving rise to the claim believable makes.
3. What is a right of disposal?
The term "disposition claim" means the legal claim of the obligee in the urgent court proceedings. In contrast to a main action suit, not every claim can be enforced by means of an injunction, but only claims to:
Example: Dealer Müller demands that competitor Meier refrain from misleading advertising on the Internet.
- Elimination, but only if this does not create definitive, irreversible relationships.
Examples: Destruction of goods or advertising material, deletion of a brand or company from the register.
- Information and inspection
In the case of obvious violations of the law, this is possible in terms of copyright and industrial property rights (see Section 19 (3) Trademark Act, Section 101 (3) UrhG, Section 46 (3) Design Act, etc.), also to obtain a certificate or to allow viewing of an item.
Example: Inspection of competing software with a "certain probability" that the source code was stolen (cf. LG Frankfurt, decisions of 13.05.2005 and 01.09.2005, Az. 2-3 O 258/05 - respondent owed the surrender of the whole in the preliminary injunction proceedings Program source codes to an expert).
- revocation in the event of a violation of personal rights
- Reply in press law, even only possible by means of an injunction
Against this, the following claims Not are enforced in preliminary injunction proceedings. If necessary, main action must be brought here:
4. What is a reason for disposal?
In addition to a claim for an injunction, the applicant also needs a "reason for injunction" in order to be able to enforce his claim in the interim injunction procedure. A reason for disposal exists if the case in a hurry is (synonym: "urgent") and it cannot be expected of the applicant to assert the claim by bringing an action on the merits.
In principle, the applicant must demonstrate urgency. Exceptions are, for example, competition law and trademark law, where it is legally presumed that the enforcement of claims is urgent.
5. What does credibility mean?
The whole point of the urgent judicial process is fast results. In contrast to the main proceedings, should be very conscious no lengthy evidence occur. Therefore, the applicant does not have to provide any evidence in the urgent procedure. According to Section 294 of the German Code of Civil Procedure (ZPO), it is sufficient if he only makes the facts on which the claim is based credible.
The difference from proof is that a lower degree of likelihood is sufficient for the facts giving rise to the claim. In contrast to evidence, it is therefore sufficient in the context of substantiation if the judge considers the respective fact to be probable. A complete personal conviction of the correctness of the factual assertion on the part of the judge is not necessary.
Approved for substantiation are for example
- Unauthorized photocopies
- Testimonywith the restriction that the nomination of absent witnesses is not permitted due to Section 294 (2) ZPO.
- Written testimony
- Telephone information and confirmations
- Privately obtained expert reports. Because of § 294 Abs. 2 ZPO are not allowed Expert opinion.
- Declaration of an oathfrom witnesses and - unlike in a main action - the applicant himself!
Because of the time-critical moment in the urgent procedure, it is crucial that the credibility can be made immediately.
6. Execution of an injunction
In contrast to a judgment in the main proceedings, which is automatically served on the parties by the court, an injunction must be issued carried out by delivery to the respondent become.
This applies in particular if the preliminary injunction was issued by the court by decision without first hearing the respondent. In this case, the court only sends the injunction order to the applicant, who in turn has to serve it to the opponent. Only when the applicant is served on the opponent (= "execution") does the temporary injunction develop its legal effect.
The preliminary injunction can be served via a bailiff respectively. If both parties are represented by a lawyer, delivery is an alternative from lawyer to lawyer possible.
Error in execution often lead to the fact that the injunction can be brought down!
What exactly must be served for effective execution is very controversial in detail.The safest way consists in delivering a "copy" of the preliminary injunction including a certified application and attachments in a certified form. According to the correct view, the delivery of a certified copy of the injunction decision is sufficient today (see OLG Düsseldorf, judgment of 07.02.2019, Az. 20 U 101/18). The situation is different, however, with unjustified rulings that refer to annexes. Such an interim injunction is only effective if the debtor is served not only with the decision itself, but also with the attachments that provide information on the content and scope of the prohibition (see OLG Frankfurt, decision of April 1, 2020, Az. 6 W 34 / 20).
Execution period: The defendant must have the injunction within a month to deliver to the respondent (§§ 922 Paragraph 2, 929 Paragraph 2 ZPO). The The execution period depends on whether the injunction was issued by order or judgment. In the case of a judgment, the day on which the judgment was announced is decisive (OLG Cologne, judgment of 13.10.2017, Az. 6 U 83/17). In the case of a ruling, the execution period starts on the day on which the court served the ruling on the applicant or his lawyer. It is controversial that the execution period begins to run even without proper delivery by the court.
Example: The court inadvertently sends the applicant the injunction order without attachments that had to be served on the defendant with the injunction (OLG Koblenz, judgment of 21.03.2013, Az. 9 U 1156/12).
The Day the deadline expires is calculated using Sections 187, Paragraph 1, 188, Paragraph 2, and Paragraph 3 of the German Civil Code (OLG Hamburg, decision of November 15, 2017, Az. 3 W 38/17). If the deadline falls on a Sunday, public holiday or Saturday, the deadline does not end until the next working day (OLG Düsseldorf, decision of October 31, 2000, Az. 20 U 126/00).
The The execution period is mandatory. If an injunction is not effectively served within the execution period, it will expire. The respondent can then apply for their annulment, whereby the applicant must bear the costs of the process. Subsequent delivery does not cure the missed deadline. A Reinstatement in the previous state is not possible (Harte / Henning, UWG, § 12, marginal note 509; Büscher in Fezer, UWG, § 12, marginal note 134).
exception: If a judicial officer does not serve the respondent until after the one-month period has expired, it is sufficient, according to Section 167 of the German Code of Civil Procedure, for compliance with the execution period if the applicant had previously taken all necessary and reasonable actions so that the temporary injunction was "soon" to the Defendant is served. In practice, it is therefore sufficient if the applicant correctly applies for delivery to the competent body within the one-month period with all the necessary documents (see BGH, decision of December 15, 2005, Az. I ZB 63/05, typically the bailiff distribution office at the competent enforcement court).
For after 01/10/2015 titles issued in an EU member state In Germany, according to Art. 39 EuGVVO new version, no declaration of enforceability is required. For EU titles, an execution period of one month should also apply in Germany (see BGH, decision of December 13, 2018, Az. V ZB 175/15). For the enforcement of EU titles issued before January 10, 2015 in Germany, we recommend this post on the ZPO blog.
7. Procedural matters
- Are the The pre-judicial warning and the application in the preliminary injunction procedure are not congruent, a written hearing of the respondent may be required. If the respondent recognizes the application in the course of the written hearing, the applicant can, due to the lack of congruence, the Cost consequences of § 93 ZPO (LG Frankfurt, judgment of 03.04.2019, Az. 2-03 O 508/18). Update: In the above constellation got to according to the Federal Constitutional Court, the defendant should be heard.
- If an applicant first submits an application for an injunction to a court and then withdraws this application because this court has raised concerns, does not decide without an oral hearing or does not provide any answers to questions about the prospect of success of the application, one then fails request received by another court is generally sent to one Need for legal protection (Düsseldorf Higher Regional Court, judgment of January 31, 2019, Az. I-20 U 87/18).
- If a judge gives the applicant an indication of how an inconclusive application for an injunction can be reformulated and he does not inform the defendant, who has deposited a protective letter, of this information in order to issue the interim injunction without an oral hearing after adapting the application the concern of Bias justified (OLG Düsseldorf, decision of March 6, 2019, Az. 11 W 70/18).
8. Abuse of Rights
The Prosecution of competition law claims due to various advertising measures before various courts is not an abuse of law within the meaning of Section 8 (4) UWG if, due to successive changes in the advertising measures by the competitor due to complaints under competition law, the summary of the attack on all forms of infringement in a preliminary injunction procedure is not possible due to its urgency (BGH, judgment from February 24th, 2019, Az. I ZR 200/17 - The best network).
The one directed against an advertising measure successive pursuit of fairness and trademark claims in separate proceedings the preliminary injunction does not usually constitute an indication of illegal behavior because it is factually justified by the considerable differences in the actual presentation and legal assessment of the respective violations (BGH, judgment of February 24, 2019, Az. I ZR 200/17 - The best network).
II. Advantages and disadvantages of injunctions
The following illustration is intended to give you an overview of the most important requirements and special features of the preliminary injunction.
Legal protection only provisional
Opponent can file an objection → oral hearing
Risk of compensation if eV proves to be unjustified
Only permitted in cases of particular urgency (but Section 12 II UWG)
In the event of rejection, the applicant pays legal costs
Protection letter can lead to (partial) rejection of the eV
No official delivery of the ruling
No injunction due to monetary claims
III. Options to react to an injunction
It is important for debtors to know that on an injunction always should be reacted to, especially if you accept the decision, i.e. do not want to take action against the injunction. Otherwise there is a risk of additional costs that could easily have been avoided.
The different Legal remedies and options for responding after receiving an injunction are presented below along with their respective advantages and disadvantages.
1. Final declaration
In the case of a procedural and substantively justified injunction, the debtor will be keen to end the dispute quickly and permanently without incurring further costs.
Because of the provisional nature of injunctions it is not enough to remain passive and "quietly" accept the disposition, because, in contrast to main actions, interim injunctions do not become legally binding on their own accord, but can be revoked after a certain period of time if they have not been recognized as a final regulation or have been confirmed by a main judgment.
If the respondent wants to end the dispute, he has to take action on his own initiative and submit a final declaration. If he waits too long to submit the final declaration after the temporary injunction has been served, he risks receiving a final letter from the other party that may trigger reimbursable costs.If you want to submit a final declaration, please continue reading through the links above.
Advantages and disadvantages of the final declaration
advantage: Final settlement of the dispute, saving of additional costs (risks).
disadvantage: No possibility to present your own point of view to the court.
Typically useful for: Fully authorized injunctions.
2. Objection to an injunction
Is the debtor for procedural or substantive reasons disagree with the injunction, it is advisable to file an objection.
Danger: Observe compulsory lawyer
In this way, the debtor has the opportunity to present his arguments and point of view to the court. If successful, he can obtain a complete or at least partial annulment of the injunction. The court will respond to the objection of the debtor hearing and decide on the preliminary injunction by judgment, unless the parties agree. An appeal can be lodged against such a judgment.
Important: The execution of the preliminary injunction is not inhibited by the objection. Even in the event of an objection, the respondent must adhere to the ruling until it is repealed, otherwise he risks the imposition of administrative measures.
The following applies to filing an objection no deadline. However, if the objection is filed only after many months, the respondent may risk rejection due to forfeiture.
The effect of an initially issued interim injunction expires with the announcement of the judgment revoking the interim injunction and not only when it becomes final (OLG Celle, decision of 17.09.2015, Az. 13 U 72/15).
Advantages and disadvantages of contradiction
advantage: Possibility to present your own point of view to the court and obtain a (partial) annulment of the injunction.
disadvantage: Additional cost risk.
Typically useful for: (Partial) unjustified injunction.
3. Cost contradiction or cease and desist declaration subject to penalties
In addition to the possibilities of accepting an injunction or taking action against its existence, there are others graduated response options.
If the debtor is e.g. just against the cost wants to defend the preliminary injunction proceedings, but at the same time is willing to recognize the content of the claim, a mixed defense strategy in the form of one of the following variants is recommended:
- The debtor only charges one Cost contradiction. In doing so, he recognizes the material legal disposition claim of the obligee and at the same time waives the filing of a full objection. In this case, the court only decides on the costs of the injunction proceedings by means of a final judgment. For the legal cost contradiction there is a 1.3 procedural fee based on the value of the costs, on the other hand no further 0.8 procedural fee from the object value of the injunction proceedings (BGH, decision of August 15, 2013, Az. I ZB 68/12). A judgment issued after contradicting costs is essentially an acknowledgment judgment with a decision on costs, so that the legal remedy of an immediate complaint is given according to § 99 para. 2 ZPO (OLG Frankfurt, decision of 02.12.2014, Az. 11 U 73/14).
- Before or with the objection to the temporary injunction, the debtor submits a declaration of cease and desist with criminal penalties. In this case, the main thing is to be declared as settled, with the result that the court will decide on the costs of the proceedings by decision. If the debtor's behavior has not given rise to the preliminary injunction, the court will order the obligee to pay the costs.
Advantages and disadvantages of contradicting costs or a declaration of discontinuance subject to penalties
advantage: The court examines the justification of the opposing main claim. Possibility of passing procedural costs on to the applicant. Lower cost risk than full contradiction.
disadvantage: Additional, albeit reduced, cost risk compared to submitting a final declaration. In the event of a breach of the duty to cease and desist, there is a risk of a contractual penalty or administrative measures.
Typically useful for: No reason to claim for an injunction due to lack of urgency, no prior warning.
4. Enforcement of the main action
According to § 926 ZPO there is also the possibility of enforcing main proceedings, i.e. a regular main action brought by the creditor. In this case, the court will set the obligee a deadline for bringing an action at the request of the debtor. If the obligee fails to meet this deadline, the injunction can be revoked by judgment upon further application of the debtor. Otherwise, the dispute will continue in the main.
Advantages and Disadvantages of Forcing a Substantive Action
advantage: Chance of cancellation of the disposition, combined with final dispute clarification in the main process, if necessary the debtor will bear the costs for disposition and main proceedings. No credibility, but strict evidence procedures.
disadvantage: Double cost risk (disposition and main proceedings).
Typically useful for: No risk of repetition by the debtor, lack of verifiability by means of affidavits.
5. Cancellation due to changed circumstances
If circumstances change after the temporary injunction has been issued, which were decisive for the injunction, the injunction can be revoked at the request of the debtor. Relevant reasons include, for example, the lack of urgency or that Offering a security deposit. The claim for cancellation is not subject to any time limit, but is subject to the objection of forfeiture.
According to general rules, the loser bears the costs of the annulment proceedings. However, the debtor must give the obligee the opportunity to voluntarily waive the injunction before submitting the application for annulment. Otherwise he risks an immediate acknowledgment of the obligee with the consequence that he has to bear the costs of the annulment proceedings in spite of a justified application for annulment.
Advantages and disadvantages of repeal due to changed circumstances
advantage: Loss of the injunction for the future.
disadvantage: Bearing the costs if the application for annulment is rejected.
Typically useful for: final rejection of the injunctive relief claim in the main proceedings, lack of enforcement of the injunction, new legal situation (law, case law), new factual circumstances, limitation of the injunctive relief claim.
Note: Turns out that the the injunction was unjustified from the start, the creditor owes the debtor according to Section 945 ZPOCompensation, regardless of fault.
IV. Suspension of the statute of limitations by applying for an injunction
By submitting the application for an interim injunction to the court, the statute of limitations for an injunction under competition law is suspended in accordance with Section 204 (1) No. 9 BGB (BGH, decision of January 28, 2016, Az. I ZR 231/14 - MeinPaket.de). The scope of the suspension of the statute of limitations depends on the subject of dispute in the disposition proceedings.
“In the competition law injunction, the specific form of infringement is the subject of the dispute if the action is followed by a corresponding injunction. In this case, the subject of the dispute includes - regardless of whether the plaintiff relied on this infringement and presented the factual presentation associated with this legal infringement - all legal infringements that are realized in the specific form of infringement, even if the various violations each require a different factual presentation ( BGH, judgment of 13.09.2012, Az. I ZR 230/11 - Biomineral water). "
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