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The Düsseldorf Regional Court has recently rejected an application for a temporary injunction (LG Düsseldorf, Urteil v. 1.12.2017, Az. 37 O 80/17, nicht rechtskräftig).
The decision has it all. However, not with regard to substantive legal issues, but to the procedural peculiarities of injunctive relief claims and preliminary injunction proceedings.
Asserting claims for injunctive relief is not easy
The assertion of claims for injunctive relief, as described in the Trademark law, Competition law, Copyright and Personal rights are mainly the subject of disputes is difficult.
On the one hand there is the Application version. In industrial property law, the application for an injunction is the core of the procedural approach and is the source of numerous errors in practice. Incorrect wording can – as in general civil law – lead to the court seized rejecting the application in the event of a Excessive demand – with the corresponding cost consequences – or awards too little if it falls short of the statutory claim.
Furthermore, in the case of an application for injunctive relief, there is also a great risk that, due to formulation errors, it will completely ignore the creditor’s claim or justified request and will therefore be regarded as a unfounded must be rejected. After all, in practice it is not uncommon for applications to be rejected simply because they are based on Indeterminacy are inadmissible.
The preliminary injunction procedure is complicated
Moreover, a large proportion of disputes in the field of intellectual property protection are not conducted in legal proceedings, but in interim injunction proceedings and are ultimately settled in so-called final proceedings. In view of the short limitation and urgency periods that must always be observed and numerous special provisions, the enforcement of injunctive relief claims in summary proceedings often fails for formal reasons alone, even if the legal situation is clear.
An elementary prerequisite for a temporary injunction is the in rem nature of the matter, the range of which is between 1 and 3 months depending on the court seized. This is rebuttably presumed in favor of the creditor. However, if the debtor can show that the creditor knew or should have known of the infringement earlier, the application for an injunction must be rejected regardless of the substantive legal situation.
Background to the current case
A whirlpool and sauna retailer, which is currently attracting attention with a veritable wave of warnings against various competitors, had to contend with these procedural difficulties in a recent case.
He had taken offense at the fact that a competitor was advertising its products as “Made in Germany”. The accusation: essential components of the goods were supplied parts that were manufactured abroad. Another point of attack was the allegedly incorrect information provided to consumers about the delivery date of the goods to be ordered via the website. The third complaint concerned allegedly misleading advertising with the reference “CE-tested”.
It can be said that everything that could go wrong went wrong for the applicant in these proceedings. The Düsseldorf Regional Court not only rejected the application for a temporary injunction on all three points asserted with detailed reasons, but also on different grounds in each case. One application was no longer urgent, one was inadmissible and the last was unfounded.
1. not urgent
The problem with the first application was that the defendant was able to prove that the applicant had been aware of the “Made in Germany” advertising for some time. This was because the applicant had already warned and sued the defendant in May 2017 for other allegedly misleading behavior. The applicant had submitted screenshots showing, among other things, a seal-like image with the inscription “Made in Germany” to illustrate the misleading conduct in question. This meant that there was a time lag between becoming aware of the criticized act and the application for a temporary injunction.Period of more than 3 months which was too long even for the Düsseldorf Higher Regional Court District, which is otherwise generous at 2 months.
2. inadmissible because indefinite
The second motion was,
(…) to refrain from making and/or having made available to consumers offers to conclude a distance selling contract and/or from inviting and/or having consumers invited to submit offers to conclude a distance selling contract (so-called “invitatio ad offerendum”) without properly informing the consumer of the date by which the party seeking the injunction must deliver the goods.
With regard to this application, the Düsseldorf Regional Court agreed with the applicant that it was indefinite and therefore inadmissible. This was because it not only prohibited the specific form of infringement, but also the offer of distance selling contracts in general, without consumer”orderly” about the delivery date. If this request were granted, it would not be clear what would be expected of the defendant. The dispute about what is “proper” and what is not would be shifted to the enforcement proceedings.
This wording, which is often used by inexperienced litigators – and the court did not address this – is also an obligation to cease and desist with double negation and therefore in reality not an injunction, but a requirement to act. However, the above-mentioned presumption of urgency does not apply to such an obligation. Details on this problem can be found in the LHR article “The omission of the omission: No urgency in the event of a double denial in the application” can be read here.
3. unfounded
The third request was,
(…) to refrain from advertising with “CE-approved” if the advertised product has not been demonstrably independently tested by an officially recognized body, if this is done as in Annex 2.
According to the Düsseldorf Regional Court, this application was unfounded. This is because the defendant is not merely being ordered to refrain from doing something, but rather a specific duty of conduct is being imposed as part of the condition, which may be permissible in exceptional cases, but which is impossible to fulfill in this case: There is no “CE test” by an independent body, after which one may advertise with the statement “CE-approved”.
Conclusion
A very instructive decision, which is also pleasing because it puts a clear stop to the rampant “uncontrolled growth” of applications in injunction proceedings. Recently, it has happened more and more frequently that courts have either simply waved through the most abstruse applications – out of ignorance or out of the conviction that the debtor should not make such a fuss when the material legal situation is (supposedly) clear – or have changed them in the creditor’s favor out of paternal care until they somehow fit, without at least drawing consequences in the decision on costs.
Disclosure: Our law firm represented the defendant.
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