The judicial determination of abusive prosecution due to serial warnings (multiple warnings) pursuant to Section 13 (5) UWG results in the loss of the right to sue as a competitor. This does not apply in perpetuity if the person issuing the warning letter demonstrates significant changes in the relevant circumstances of the legal action which now make it appear to be fair.
The applicant - a property developer - has demonstrably warned competitors regularly and in large numbers because of anti-competitive advertisements. This led to a decision by the BGH in 2001 (GRUR 2001, 260 ff. - Vielfachabmahner) according to which this legal action by the applicant was regarded as abusive within the meaning of Section 13 (5) UWG, as the applicant's lawyer and attorney of record also represented the applicant as the owner and the warning activity served solely to generate legal fees. In its decision, the BGH rightly took the view that, from the perspective of a commercially minded trader, the legal action served no other interest than the lawyer's interest in fees.
The court's decision
In its decision of May 21, 2004 (case no. 5 U 285/03), the KG considers this circumstance to be refutable if the applicant demonstrates significant changes in the relevant circumstances. In the present case, however, it is of the opinion that there are still weighty arguments in favor of the existence of abusive legal action.
First of all, it does not matter that the lawyer has since stopped enclosing a cost note with the warning letters, as this does not change the ostensible intention to make a profit. As a rule, the applicant could not assume an out-of-court settlement of the dispute and thus, in the opinion of the court, speculated on the fees caused by the court proceedings.
Furthermore, the applicant's only minor business activity is not in any reasonable proportion to the mass prosecution of infringements of competition law. As there is no significant number of business transactions and the products offered are not actively advertised on the market, the applicant could not have been significantly affected by the competitors' infringements.
Finally, the court also considers it to be an indication of the applicant's profit orientation that he himself stated an inflated amount in dispute when initiating the proceedings, from which his fees are calculated.
See also the judgment of the Federal Court of Justice of October 5, 2000 (file number I ZR 237/98) - Vielfachabmahner, GRUR 2001, 260 ff. Here, the abusive nature of the applicant's legal action is established for the first time.
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