Proof of receipt of a warning letter is not a prerequisite for its effectiveness, as effective legal protection can only be achieved if action is taken quickly. The basic possibility of sending a registered letter does not change this.

Following service of the injunction - which he accepted by way of a final declaration - the defendant in the injunction proceedings contests the costs order at his own expense. He does so with the argument that the warning sent as a standard letter did not reach him, which is why he cannot be ordered to pay the costs of the injunction proceedings. The plaintiff in the injunction proceedings, on the other hand, has credibly demonstrated that the warning letter was correctly addressed and properly sent by normal post.

The court's decision

The decision of the OLG Braunschweig (decision of 13.08.2004 - 2 W 101/04) deals with the question of when an immediate acknowledgement within the meaning of §93 ZPO exists, which leads to the plaintiff / warning party having to bear the costs of the proceedings itself. The decisive factor is ultimately whether or not the defendant gave rise to the action, which he must prove.

According to the correct opinion of the court, the warning is not a declaration of intent, but an obligation of the party issuing the warning as a result of a weighing of interests. Proof of receipt is therefore generally not a prerequisite for the warning to be effective. However, in the absence of delivery, the warning letter cannot fulfill its warning function either.

Nevertheless, the court assumes that the party issuing the warning can only be expected to accept further disadvantages beyond the obligation to issue a warning to a limited extent, as effective legal protection in the event of infringements of competition law can only be achieved if action is taken quickly due to the urgency of the matter. By setting a deadline and waiting for this deadline, the party issuing the warning has basically fulfilled its obligations, as the proof of receipt of the warning would often be associated with delays that do not correspond to the urgency of the matter.

In the opinion of the OLG, the possibility of sending it as a registered letter does not result in anything else. This would make it possible to prove receipt. However, this would only be possible after corresponding inquiries with the respective mailing company (Post AG), which would lead to further delays.

The warned party or infringer has thus also given cause for the court proceedings within the meaning of Section 93 ZPO if he has not received the warning, but its dispatch has been made credible. An immediate acknowledgement in the form of a final declaration therefore does not exempt him from the cost burden.

The OLG Dresden, NJWE-WettbR 1999, 16 (Ulrich, WRP 1998, 124) was of the opposite opinion.