A warning is a formal, out of court request to refrain from certain actions. In Germany, warnings are mainly issued in the fields of industrial property right, competition law, and internet law.
In the field of industrial property right, warnings are commonly used in cases of infringement of patents, utility models, industrial designs or trademark law, as well as copyright. In internet law, warranties are often used to indicate a violation against the obligation to provide an imprint, frequently seen at e-bay auctions or at online sales in a shop.
A warranty is usually issued by the holder of such rights or licensees and prepared and send by specialized law firms. Warranties are often sent in large quantities and thus the question about an alleged infringement is not unequivocally clarified.
Warranties are made by default and their structures are similar. Warranties are typically annexed to cease and desist orders.
It is very important that warranties do not remain unanswered as, in the case of an infringement of rights, the person giving the warning can immediately after expiration of the deadline mentioned in the writing, apply for an interim injunction or an action in front of the competent court.
Trials usually take place in German courts because, in case of an infringement, they have local jurisdiction in Germany. The local jurisdiction also applies if, for instance, an online shop operator based in Poland makes an offer to German customers. According to the German jurisdiction, this is usually the case, if the goods are offered in the German language and the shipping of the product abroad is a possibility.
It is not advisable to sign a cease and desist order without getting legal advice as the pre-formulated cease and desist orders by the person giving the warning usually do not comply with the legislation. By signing such a cease and desist declaration the party receiving the warning has obliged himself to pay a contractual penalty in the event of future breaches. Before obliging oneself to pay a contractual penalty the infringement of the laws has to comply with the corresponding requirements of the German courts. As the infringement is not always eliminated, the person receiving the warranty can raise a claim for contractual penalty.
Adriana Grau, LL.M. in Intellectual Property Law
Managing partner of the law firm GRAU Rechtsanwaelte LLP
Specialised lawyer for industrial property
Specialised lawyer for commercial and corporate law
GRAU Rechtsanwaelte LLP is an internationally orientated law firm with a focus on commercial law and its head office in Hamburg. The focal points of our consultancy work are commercial and corporate law as well as industrial property rights. We advise medium-sized companies and large companies nationally and internationally. Our clients include numerous foreign enterprises who want to market and distribute their products in the German market.
For instance, we have represented clients against the following companies: