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A defendant in interim injunction proceedings must warn the applicant before initiating proceedings to set aside the injunction. This is certainly the case if he does not want to run the risk of being stuck with the costs after an immediate acknowledgment.
A recent decision by the Munich Higher Regional Court underlines this necessity (OLG München, Beschluss v. 1.4.2019, Az. 18 W 338/19).
The case also shows that large sums are involved (in this case over €10,000) and that this fact can easily be overlooked even by specialized law firms, which otherwise do not miss a procedural trick (the defendant in the injunction was Google).
Google does not delete voluntarily
In some cases, a debtor who wishes to have an interim injunction issued against him lifted as part of a revocation procedure in accordance with §§ 927, 936 ZPO due to changed circumstances. He can do this if the reasons for issuing the interim injunction have subsequently ceased to exist. In this case, no less than Google LLC, the operator of the well-known search engine of the same name, wanted to make use of this option.
The applicant had obtained an interim injunction against Google for unlawful search results at Munich Regional Court I after the search engine had not responded to out-of-court removal requests. Google subsequently deleted the search results.
However, with this basically pleasing interim result, the (procedural) problems of unlawful reporting by those affected often only really begin. Because even if Google deletes the search results after some time, the applicant must ensure proper enforcement of the interim injunction, which is then no longer required in the matter, in order to avoid the risk of being left with the not inconsiderable costs of the proceedings.
Google’s law firm is not authorized
A popular reaction to a preliminary injunction, especially from US Internet giants, is to have the German law firm, which is otherwise responsible for active litigation and other legal representation and with which one is in constant correspondence in numerous parallel cases, informed that it is now not authorized for the injunction proceedings in question, which are unpleasant for Google.
With German opposing parties, it is usually not a problem if the opponent is not represented by a lawyer: the interim injunction is then simply served on the party personally. This is an everyday procedure within Germany. However, things are a little different for companies based abroad. In this case, a complicated and lengthy foreign service (in this case to the USA) must be initiated, which can often take many months.
Even this is not an unsolvable problem for applicants. Although the enforcement period, which begins to run when the applicant is served with the interim injunction, is only one month, the time of actual service, even if it is months later, is retroactive to the time the applicant issued the order if the applicant has done everything in his power within the enforcement period to properly initiate service abroad. Service must be effected “as soon as possible”.
Google does not understand German
At this point, however, Google presents the defendant with yet another hurdle. For although Google effectively controls the entire Internet worldwide and does excellent business in Germany and German-speaking Europe in particular, without a lack of knowledge of German being an obstacle to this, those responsible at Google take the position in the enforcement proceedings that the official language in the United States is English and that German is not understood or does not need to be understood. The documents to be served must therefore be translated in advance by an official interpreter.
Google causes effort and costs
This not only puts the applicant in financial difficulties: the highest bill known here for the translation of a preliminary injunction (plus attachments) amounted to no less than €16,000.
The applicant must, of course, also make haste, especially if he commissions a translation agency himself in order to save costs. If he hands over the translation to the court, which is also possible, he must also continue to cooperate and make every effort to promote the intermediate steps necessary for proper execution.
The proposal made to the law firm that usually represents Google after the preliminary injunction was issued to dispense with these formalities and accept the preliminary injunction as served in order to avoid the time-consuming service procedure and the translation costs of around €6,000 was rejected. In this case, too, the company is not authorized. Google is naturally speculating that the applicant will either make mistakes during the complex procedure or will not pay the costs for the translation. However, Google had done this calculation without the applicant.
Google’s law firm is authorized after all
After the preliminary injunction was translated around €6,000 later and delivered to Google’s headquarters in beautiful California around 3 months later, the previously unresponsible law firm was of course appointed.
However, this was essentially only to criticize the necessity of translating individual documents, to object to the amount of the procedural costs and to apply for the interim injunction to be lifted. The translation had taken too long and therefore the final date of service could not be backdated to a period in which the enforcement deadline had still been met.
In addition, the law firm applied for the applicant to be ordered to pay both the costs of the injunction proceedings and the further costs of the annulment proceedings, a sum now in excess of €10,000, which could have been avoided from the outset.
Google bears costs in the amount of € 10,000
There was no prior request to waive the rights arising from the preliminary injunction. This was a serious mistake. The defendant acknowledged the application for annulment – as its objective in the matter, the deletion of the unlawful search results, had been achieved in the meantime. She merely defended herself against the obligation to bear the costs, which in her view were completely unnecessary and caused by Google’s refusal.
The Munich Higher Regional Court ultimately confirmed the Munich I Regional Court that the applicant did not have to bear the costs of the injunction proceedings, nor those of the annulment proceedings (OLG München, Beschluss v. 1.4.2019, Az. 18 W 338/19).
The decision on costs in the annulment proceedings is in principle limited to the costs in this regard. The costs of the order proceedings could therefore not be imposed on the applicant. However, the costs of the annulment proceedings were not to be borne by the applicant either. Rather, these were to be borne by the respondent. According to the correct view, the defendant in injunction proceedings must request the applicant to waive the rights arising from the interim injunction or to threaten the application in accordance with § 927 ZPO before initiating court proceedings to set aside the injunction. This was not done.
The applicant had therefore submitted an effective immediate acknowledgement. This was even despite the fact that she had sent a final letter to the defendant after a certain deadline had expired. Even in this context, the applicant for annulment had not referred to her intention to have the interim injunction annulled by invoking the lack of enforcement.
Do the right thing
This decision brings a pleasing end to a dispute that has lasted almost three years and was ultimately only about – completely unnecessary – costs triggered by Google solely to cause economic pressure.
It remains to be seen whether Google will actually pay. After all, the costs of a legal dispute would also have to be enforced if necessary. And again, you guessed it, in the USA. Perhaps Google will remember its corporate motto after all. Since 2015, this has been “Do the right thing.”
Disclosure: Our law firm represented the applicant.
