Model of a cease-and-desist declaration with penalty clause in competition law
Example: untrue assertion of facts according to § 4 No. 2 UWG
Company ...
- "DEBTOR"-is committed to the
Company ...
- "CREDITOR" -1. to refrain as a business act [now follows the so-called "form of infringement":] to claim against third parties that the creditor would assert untrue facts] if it happens as happened on[date] towards Mr....;
2. to pay a contractual penalty of € 10,000.00 (in words: ten thousand euros) to the creditor for each case of future infringement of the act described under item 1 and
3. to provide the creditor with information on the scope of the infringing act described under item 1;
4. to compensate the creditor jointly and severally for any damage caused or to be caused by the infringing act described under item 1;
5. to bear the costs incurred through the use of the lawyers... in accordance with a 1.3 fee in accordance with VV 2300 plus expenses from an object value of € 25,000.00.
[Place, date]
(Company .... )
Model of a cease-and-desist declaration with penalty in trademark law
Company ...
- "DEBTOR" -is committed to the
Company ...
- "CREDITOR" -1. to refrain in commercial dealings from offering, importing, placing on the market or possessing textiles for the aforementioned purposes marked with the designation "[BRAND XY] " [now follows the so-called "form of infringement":] unless these textiles are used with the consent of... GmbH into the European Union or into a Contracting State to the Agreement on the European Economic Area, in particular in the case of T-shirts, as shown in the following description
[here follows a picture of a T-shirt bearing the inscription"[BRAND XY]"]2. to pay a contractual penalty to the creditor to be determined by the creditor for each case of future infringement of the act described in Clause 1 and to be reviewed by the District Court of Frankfurt am Main for its appropriateness in the event of a dispute, and
3. to inform the creditor of the origin and distribution channel of the illegally labelled textiles via the name and address of the manufacturer, the supplier and other previous owners; name and address of the commercial customers and sales outlets for whom the goods were intended; the number of textiles offered, imported and placed on the market, their purchase and sales prices and production costs; the net proceeds achieved and the profit made
by submitting copies of invoices and delivery notes from suppliers and commercial customers and copies of suitable banking and financial documents;4. to compensate the creditor for any damage caused or to be caused by the infringing act described under item 1;
5. to immediately recall all illegally marked textiles and to return them to us by... - received by the signatories - to prove the recall in an appropriate form;
6. to destroy immediately all textiles in the possession of the debtor in accordance with item 1 and such textiles whose possession it has regained through the recall and to prove this to the creditor;
7. to bear the costs incurred through the use of the lawyers... in accordance with a 1.3 fee in accordance with VV 2300 plus expenses from an object value of € 100,000.00.
..............................................
[Place], [Date]
..............................................
(Debtor)
Model of a cease-and-desist declaration with penalty clause in design law
Example: Infringement of an Unregistered Community Design (in the case: jackets)
Company ...
- "DEBTOR" -is committed to the
Company ...
- "CREDITOR" -1. immediately cease to operate in the Community
To offer, sell, or otherwise place on the market, or possess for the purposes mentioned, jackets[for which there must be at least a risk of recurrence], which have the following design features
[Note: Whether one already specifies the characteristics determining the species in a possible subsequent court application depends on the court to be called. There are courts that consider the indication of characteristics in the application to be a limitation of the scope of protection]:
(1)[design feature 1 follows]
(2)[further design features to follow]
(3)
(4)
(5)
(6)if it is designed as follows:
[concrete form of injury follows]
2. for each individual case of violation of an obligation mentioned under item 1, the debtor undertakes to pay a contractual penalty in the amount of € 5,100.00 to the cease-and-desist creditor [note: a contractual penalty promise can also be formulated here according to "modified Hamburg custom"];3. to provide complete information and invoices, including an ordered list and order confirmations, invoices and delivery notes on the names and addresses of commercial customers, the quantity of jackets ordered, received and sold, the prices paid for the garments concerned and, finally, the production costs broken down according to the individual cost factors and the profit made;
4. to return items of clothing in their direct or indirect possession or ownership pursuant to Clause 1 to the creditor or a bailiff appointed by the creditor for destruction;
5. to recall all items of clothing in accordance with Clause 1 and to remove them from the distribution channels;
6. to compensate for all damages incurred and still to be incurred as a result of the actions under item 1, in particular also to pay the costs of legal recourse in the amount of the business fee 2300 VV RVG, with an amount of 1.3 from an object value of € 200,000.00 plus lump-sum expenses.
…………………………………………………………………………………….
[Place, Date]
…………………………………………………………………………………….
(Debtor)
Author: Attorney at Law (Rechtsanwalt) for Trademark Law, Competition Law and Specialist Lawyer for Intellectual Property (Fachanwalt fuer gewerblichen Rechtsschutz) Thomas Seifried