If the recipient of a warning letter submits a cease-and-desist declaration with a penalty clause, the risk of repetition resulting from the infringement is regularly eliminated. But can the warned party limit the cease-and-desist declaration to advertising on the internet or is this not sufficient? The Frankfurt am Main Higher Regional Court provides an answer to this question.
A company that manufactures devices for health monitoring and aesthetic therapy advertised various devices and treatments on the Internet in an anti-competitive manner.
In response to the applicant's warning, the company issued a cease-and-desist declaration, but expressly limited it to advertising on the Internet.
In the opinion of the warning party, such a limited declaration of discontinuance does not eliminate the risk of repetition.
The court's decision on the cease-and-desist declaration
The OLG Frankfurt a.M. ruled in favor of the party issuing the warning and decided that Decision of 25.01.2016 - Ref. 6 W 1/16that a declaration to cease and desist with a penalty clause, which is expressly limited to advertising on the Internet, does not eliminate the risk of repetition and is therefore not sufficient.
The Frankfurt judges' decision was based on the fact that an act of infringement gives rise to the presumption of a risk of repetition not only for the identical form of infringement, but also for all acts of infringement that are essentially similar.
The risk of repetition also covers other forms of advertising than advertising on a website, e.g. the distribution of the brochure placed on the Internet as a printed work.
Conclusion
A restriction of cease-and-desist declarations with a penalty clause to advertising on the Internet should be avoided in order to actually eliminate the risk of repetition. Otherwise, there is a risk that the warned party will be sued for injunctive relief.
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