Preliminary Injunction

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

Preliminary injunction, urgency und declaration to close the preliminary injunction proceedings


A preliminary injunction is effective immediately

An injunction must be complied with immediately after service. Otherwise, there is a risk of severe administrative fines or penalty payments The injunction procedure is something for specialists who know the special features of injunction proceedings.


Strict formal requirements

An injunction must be served correctly. Irreparable mistakes are often made here. The urgency must also be taken into account.


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Practitioner's guide to advertising law zum Werberecht by Thomas Seifried (in German)

„Rechtsicher werben", 180 Seiten, XchangeIP Verlag, in bookstores or at Amazon

Free ebook on cease-and-desist letters 2021 (in German) as ePUB or PDF

Everything about warning letters and cease-and-desist declarations with penalties

Practitioner's guide to trademark and design law Seifried/Borbach (in German)

"Property Rights and Legal Protection in the Fashion and Textile Industry", 368 pages, published 2014 by dfv-Mediengruppe


[Translate to English:] Einstweilige Verfügung: Vorläufige gerichtliche Eilentscheidung

A preliminary injunction is a provisional decision by the court to secure a claim that is not for money. The prerequisite for issuing a preliminary injunction is urgency. In addition, the main case may not be prejudged. In principle, therefore, only provisional, but not definitive, judicial measures can be achieved with a preliminary injunction. A final ruling is reserved for the "main proceedings". A preliminary injunction issued without an oral hearing by way of a decision is called a "decision order".


Advantages of a preliminary injunction

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.

The claims in intellectual property rights enforceable in preliminary injunction 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.

Urgency as a prerequisite for the issuance of a preliminary injunction

A preliminary injunction is only issued if the court considers the claims asserted to be justified and the "reason for the injunction" is shown to be credible. This reason for the injunction is urgency: the matter must be so urgent that the applicant cannot reasonably be expected to wait for a decision in ordinary legal proceedings from the time he becomes aware of the infringement. Knowledge of the infringement on the part of the lawyer can be attributed to the knowledge of the applicant at any rate from the time the order is placed (OLG Hamm, judgment of May 3, 2011, Case No. 4 U 9/11 - Salve einer Abmahngesellschaft = BeckRS 2011, 16745; OLG Frankfurt am Main of May 31, 2010, Case No. 6 W 50/10 = GRUR-RR 2011, 66 - Sequestrationsanspruch).

Legal presumption of urgency in competition law and trademark law

Anyone applying for a preliminary injunction must demonstrate this urgency and make it credible. In competition law, this urgency is legally rebuttably presumed, Sec. 12 (2) UWG. In trademark law, this is done in accordance with Section 140 (3) MarkenG. Applications for injunctions are correspondingly popular in competition law and trademark law.

The urgency deadlines in the individual Higher Regional Court districts

The time limits that individual courts consider still sufficient for the necessary ground for injunction (i.e., urgency for issuance of a preliminary injunction) to exist vary among courts. Some examples:

  •     OLG Cologne: one month (OLG Cologne v. 14.07.2017 - 6 U 197/16), but "special features of the individual case" must be taken into account (OLG Cologne WRP 2014, 1085 - L-Thyrox).
  •     OLG Düsseldorf: In most cases, even a period of two months between knowledge of the infringement until the filing of the application is not yet detrimental to urgency (see, for example, OLG Düsseldorf, judgment of 12.09.2019 - 15 U 48/19)
  •     OLG Hamm: One month (OLG Hamm v. 7.2.2019 - I-4 W 12/19 - Rebuttal of the presumption of urgency by waiting beyond one month since knowledge of the infringement of competition law)
  •     OLG Munich: One month (cf. LG München I, judgment order dated Jan. 16, 2018 - 33 O 15848/17).
  •     Hanseatic Higher Regional Court of Hamburg: Five weeks in the case of disputes relating to the law of expression (OLG Hamburg v. 18.08.2017 - 7 U 72/17), in competition matters during the vacation period possibly longer (cf. OLG Hamburg, ruling v. 16.4.2020 - 15 U 124/19 - Affiliate-LInk)
  •     OLG Frankfurt: Roughly six weeks (OLG Frankfurt v. 27.09.2012 - 6 W 94/12)
  •     Hanseatic Higher Regional Court Bremen: "A good six weeks" still not detrimental to urgency, although two weeks earlier would have been more optimal (OLG Bremen v. 12.04.2001 - 2 U 18/2001)
  •     OLG Dresden: One month (OLG Dresden, judgment of November 27, 2018 - 4 U 1282/18)
  •     OLG Stuttgart: Less than one month does not harm urgency, eight weeks are usually too long (OLG Stuttgart v. 12.10.2017 - 2 U 162/16)
  •     LG Berlin: Two months (LG Berlin v. 28.10.2014 - 15 O 345/14)

No resurgence of urgency

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).

Proper service?

A preliminary injunction is not served by the court. Rather, it must be served "in party service" by the applicant or injunctive plaintiff. Many mistakes are made here. We are familiar with the different requirements of the courts for proper service and have successfully conducted many injunction proceedings for our clients before district courts and higher regional courts throughout Germany.

Closing letter and declaration to close the preliminary injunction proceedings

Declaration to close the preliminary injunction proceedings is usually used to end preliminary injunction proceedings

Closing letter

The closing letter is the request for a closing statement following the issuance of a preliminary injunction. With this final declaration, the defendant or respondent recognizes the preliminary injuncti after service of a preliminary injunction.

Declaration to close the preliminary injunction proceedings

A declaration to close the preliminary injunction proceedings is usually used to end preliminary injunction proceedings. With this final declaration, the defendant or respondent recognizes the preliminary injunction as the final settlement. An action on the merits following the injunction proceedings is then no longer possible. Such an action would lack the legal protection requirement. However, a final declaration only removes the need for legal protection if it corresponds to the content of the preliminary injunction. (BGH GRUR 2005, 692 – „statt“-Preise).

Deadline for submission of declaration to close the preliminary injunction proceedings

The deadline developed by case law for submitting a closing statement is 14 days after the date of service of the temporary injunction. Only if he complies with this deadline can the claimant also demand reimbursement of the costs for the closing letter from the defendant (BGH, judgment of January 22, 2015 - I ZR 59/14 - Kosten für Abschlussschreiben II).

Amount of fees for a closing letter

There is always a dispute about the amount of the attorney's fees that the applicant for the preliminary injunction can demand to be reimbursed for the final letter. The 6th Civil Senate of the BGH assumes that in principle a fee within the fee range of No. 2300 RVG VV, namely between 0.5 to 2.5, can be demanded to be reimbursed (BGH judgment of 22.03.2011, No. 24 - VI ZR 63/10). In the case in dispute, the BGH had considered a fee in the amount of a 1.3 fee to be reasonable. The 1st Civil Senate, which is responsible for industrial property rights, takes a different view: Here, in the judgment of February 4, 2010 - I ZR 30/08 (= GRUR 2010, 1038 - Kosten für Abschlussschreiben) - the BGH had treated a closing letter in the specific case as a "letter of a simple nature" and considered only a 0.3 fee to be recoverable.

Author: Thomas Seifried, German Trademark Attorney (Rechtsanwalt) und Intellectual Property Specialist Lawyer (Fachanwalt fuer gewerblichen Rechtsschutz)