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).
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
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)