The preliminary injunction, urgency and final declaration in competition law, trademark law and design law

A preliminary injunction has a number of advantages for the applicant. The most important: it is quick. In most cases, preliminary injunctions are issued without hearing the opponent and without an oral hearing. As soon as the preliminary injunction has been served, the applicant can enforce it, e.g. by filing an application for an order (Section 890 of the German Code of Civil Procedure) or an application for a compulsory remedy (Section 888 of the German Code of Civil Procedure). This is often possible within a few days. Only if a court has doubts about the application will it schedule an oral hearing.

Interim injunction proceedings are also often terminated quickly. Another advantage is that, whereas in a lawsuit, the claimant must provide evidence of the actual facts, in a preliminary injunction proceeding it is sufficient to "establish the credibility" of the alleged facts. The correctness of the facts does not have to be proven, but only predominantly probable. In addition, even a person who is unsuitable as a witness in legal proceedings because he or she would be a party can make facts credible. This is usually done by submitting an affidavit. Finally, the applicant does not have to pay an advance on court costs.

A prior cease and desist letter prior to an application for a preliminary injunction is not in itself necessary. However, anyone who obtains a preliminary injunction without having previously warned the opponent and requested him to submit a cease-and-desist declaration with a penalty clause is at risk of "immediate acknowledgement" of the preliminary injunction. The applicant must then pay the costs of the proceedings, even though he has won the proceedings (Section 93 ZPO).

Disadvantages of a preliminary injunction

For the applicant, an application for a preliminary injunction also has disadvantages. The most important disadvantage is that it has to be done quickly. If the applicant delays too long from the time he learns of the infringement, the "urgency" ceases to apply (see below). In addition, a preliminary injunction is not served by the court. Rather, the applicant must serve it himself on the opponent or possibly on his attorney in the course of the party proceedings. Strict formal requirements apply here. Anyone who makes a mistake in the service of the document is at risk of having the preliminary injunction set aside for this reason alone.

Finally, another disadvantage is the risk of subsequent proceedings on the merits. If the opponent does not end the preliminary injunction proceedings with a final declaration, a time-consuming and costly main action usually follows. If the applicant is then unable to prove the facts previously asserted in the preliminary injunction proceedings (e.g. because he is himself a party), he is not only at risk of losing the main proceedings, but also of having the preliminary injunction set aside in revocation proceedings.

For the applicant, an application for a temporary injunction also has disadvantages. The most important disadvantage is that it has to be done quickly. If the applicant delays too long from the time he learns of the infringement, the "urgency" is no longer applicable (see below). In addition, a preliminary injunction is not served by the court. Rather, the applicant must serve it himself on the opponent or possibly on his attorney in the course of the party proceedings. Strict formal requirements apply here. Anyone who makes a mistake in the service of the document is at risk of having the temporary injunction revoked for this reason alone.

Finally, another disadvantage is the risk of subsequent proceedings on the merits. If the opponent does not end the preliminary injunction proceedings with a final declaration, a time-consuming and costly main action usually follows. If the applicant is then unable to prove the facts previously asserted in the preliminary injunction proceedings (e.g. because he is himself a party), he is not only at risk of losing the main proceedings, but also of having the preliminary injunction set aside in revocation proceedings.

In the case of infringement of intellectual property rights, e.g. a trademark infringement, and in the case of supplementary protection under competition law, claims for injunctive relief and claims for information about the origin and the distribution channel can thus be asserted provisionally and quickly. As a rule, claims other than claims for injunctive relief and claims for information can only be asserted in injunction proceedings as an exception.

Legal Presumption of Urgency in Competition Law and Trademark Law

The use of preliminary injunctions is particularly popular in competition law and trademark law. This is because the "urgency", i.e. the particular need for urgency, is legally presumed here: in competition law under Sec. 12 II UWG and in trademark law under Sec. 140 II MarkenG. The urgency therefore does not have to be proven ("made credible"). In practice, injunction proceedings are frequently terminated by the submission of a final declaration - often following a request by means of a final letter - without any further proceedings on the merits.

What was not urgent to an applicant may not become urgent later.

Example: In 2020, the defendant publishes various statements on the Internet that the applicant does not want to have prohibited by court until May 2021 in preliminary injunction proceedings. The court refuses to issue a preliminary injunction due to lack of urgency. Subsequently, the defendant publishes the cease-and-desist declaration sent by the applicant prior to the proceedings, in which these statements are repeated. This repetition of the statement could not revive the urgency, because the statements are not different from those that the applicant did not want to prohibit urgently enough (OLG Brandenburg, judgment of 19.7.2021 - 1 W 23/21).