The out-of-court warning is merely an obligation with regard to the reimbursement of legal costs, but not a prerequisite for admissibility in court proceedings. The warning is even dispensable if it is foreseeable that it will be unsuccessful or if it is unreasonable for other reasons. However, a deliberately negligent or intentional breach of competition law alone is not sufficient for this without additional circumstances.
The subject of the proceedings was a dispute about the admissibility under competition law of an advertisement for Internet access services which did not mention separately incurred telephone connection charges.
Pursuant to Section 93 of the German Code of Civil Procedure (ZPO), which applies accordingly to interim legal protection, the applicant is liable for the costs of the proceedings if the defendant immediately acknowledges the asserted claim and has not given cause to initiate legal proceedings. From the plaintiff's point of view, the prior reference to the objectionable conduct in the form of the warning letter offers an opportunity to eliminate this risk, as the person being warned is thus left free to decide whether to give in or to dispute (see OLG Düsseldorf NJW-RR 1997, 1064).
The court's decision
In the opinion of the court (OLG Schleswig, decision of April 4, 2000 - 6 W 7/00), the situation is different if it is not promising from the outset or unreasonable for other reasons to request the infringer to cease and desist before taking legal action (see OLG Dresden NJWE-WettbR 1999, 16 (17) with further references; OLG Cologne GRUR 1988, 487). This is particularly the case if the impression had to be created that the infringer would not comply with the warning letter, but would actually seek to continue its anti-competitive action for a certain period of time in reliance on the delivery of a warning letter.
While the lower court (Flensburg Regional Court) still assumed that the defendant was an experienced company with extensive legal advice, which made the success of the warning letter appear unlikely, the appellate court did not want to follow this view. It is true that these circumstances suggest that the defendant acted intentionally or with conscious negligence. This only constitutes a reason to dispense with the requirement of a warning letter, even in the case of important companies, if it can be inferred from the circumstances that the infringer will not submit out of court. Experience in this regard cannot be established, which is shown in particular by the immediate submission of the defendant in the lawsuit.
The pre-litigation warning is unreasonable if the circumstances show that the infringer is particularly persistent or malicious as a "serial offender". In the case of mere urgency, these conditions are not met in any case: in principle, this is only suitable for reducing the reasonable deadline - if necessary to 1 hour - but not for justifying the unreasonableness of the warning. The situation is different, for example, in cases of trademark piracy and one-off or short-term advertising measures.
In the opinion of the Higher Regional Court of Schleswig, the warning was therefore not dispensable in the present case, which is why the plaintiff had to bear the costs of the proceedings despite success on the merits.
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