An injunction is a criminal conviction

Attorney Ralf Möbius

Interim disposal
  1. introduction
    According to the relevant regulations in competition law, copyright law and trademark law, legal proceedings should be preceded by a warning with the request to submit a declaration of cease and desist with criminal penalties. These regulations, which as a rule also apply to IT law due to the overlapping of content, serve to avoid judicial proceedings and thus relieve the courts, but are not binding as “target regulations”, but can affect the costs of the proceedings have a significant impact. A warning is usually issued by a lawyer or patent attorney to an alleged infringer.

    The warning usually justifies an obligation to bear the costs for the warned, if it is justified. This is justified by the jurisprudence mostly from the point of view of the management without an order (GoA). Because the warning person points out existing rights to the violator, which he is obliged to respect under the law, he actually carries out his business and thus saves him an expensive legal dispute. For this, the managing director (warning person) can demand reimbursement of his expenses, namely his own legal fees, from the business owner (warned person) according to § 683 BGB.

    However, if - for tactical reasons, for example - no or only an inadequate declaration of discontinuance is given, the warning person has the option of applying for a so-called "temporary injunction".

    This is an urgent judicial procedure. The temporary injunction does not serve the purpose of final satisfaction, but only to secure the enforceable title through a final judgment and is therefore possible before the main process. The procedure in interim legal protection is classified as a separate type of procedure next to the decision-making and enforcement procedure. It serves to temporarily secure endangered rights (legal relationships) through arrest (secure access) or the temporary injunction (example: failure to make an assertion) on the basis of a mere assertion and without a final determination of the right in need of security.

    The decision is made by the local court or regional court either by a resolution without an oral hearing or by a judgment with an oral hearing. Here is an example of an injunction based on a resolution without an oral hearing by the Nienburg District Court and here an example of an injunction based on a judgment after an oral hearing by the Hanover Regional Court. An oral hearing or a hearing of the person admonished usually does not take place, but is sometimes scheduled by the court at short notice if it sees a need for clarification and considers the oral hearing to be useful in this respect.

    In order to apply for an injunction, special knowledge is generally required, which not every lawyer necessarily has to the same extent. While injunctions are rarely applied for in the case of payment claims and traffic accidents, this occurs relatively frequently in the right of expression. Nobody wants to wait for a lengthy main proceedings to remove an insult on Facebook, in which the insult complained about can be read on the Internet for months if not years. In this respect, an injunction can bring a remedy much faster. Sometimes it only takes a few days before you have a corresponding decision in your hands. However, because not every lawyer is equally well qualified, you should hire a lawyer who has proven knowledge of emergency legal protection, such as a specialist lawyer for IT law, when mandating. Otherwise it can lead to small disasters, as the following ruling by the Bremerhaven District Court proves. Here a lawyer was not even able to clearly formulate the legal protection goal of his own client, so that the court could of course not issue an injunction that had been applied for. The application was so imprecise and incomprehensible that the court did not really know what was wanted. Since the applicant's lawyer did not even react to the clear indication of the court and did not take the time to improve the application, the application for an injunction had to be rejected and the applicant had to bear all legal costs.

    Due to the widespread use of the social network Facebook, there are more and more insults, lies or unauthorized publication of photos, in which the injured person does not want to wait so long to delete the insult, lie or photo until a judgment in a normal civil process is spoken. The application for a preliminary injunction promises a quick remedy. With an injunction it can be possible to remove insults from Facebook within two weeks if the person responsible refuses to remove the legal violations. Here is an example of removing an insult on Facebook by using the Nienburg District Court, another example can be seen here for removing a lie on Facebook with the help of the Hamburg District Court. Removing a picture of a child on Facebook was possible with the help of the Bremerhaven District Court.

    If a defendant or defendant does not adhere to the injunction, an application for a fine will be submitted to the court in order to enforce compliance with the injunction. In the event of multiple refusals, orderly detention can also be issued. Such an administrative fine, ordered by the Nienburg District Court, can be viewed here.

    The injunction is usually served by the bailiff at the party and is immediately effective at the time of service. An appeal can be lodged against the injunction. Among other things, this is the "contradiction". As a result, the content of the temporary injunction will be decided in an oral hearing. In the event that no objection is to be lodged against the preliminary injunction of an opponent, the preliminary injunction must be responded to in order to avoid further costs.

    Since many claims expire within a short period of time, the applicant must be informed as soon as possible whether the injunction is recognized as final and legally binding. If such a declaration is not made by the respondent, the applicant can ask him to submit a final declaration. However, this request is associated with considerable additional costs, which can be avoided by submitting a final declaration promptly without a request from the other party.
  2. The injunction in the legal context
    The injunction is one of the instruments of interim legal protection in civil proceedings. Provisional legal protection offers the possibility of protecting subjective rights even before a decision is made in the main proceedings. The conduct of main proceedings may not guarantee effective legal protection under certain circumstances. This can be the case if, for example, due to the length of the proceedings, it is to be feared that the disputed law will finally be shortened or the infringement will continue until the decision on the main matter has been reached. In the normal course of proceedings, a judgment can be expected in a few months at the earliest, and not infrequently only after years.

    In addition to the temporary injunction, there is arrest (§§ 916 ff. ZPO) and temporary injunction. The arrest serves to secure the foreclosure of a monetary claim or a claim that can turn into such. The interim injunction is a special form of interim legal protection that the law provides at different types and stages of the procedure, particularly in family law. The temporary injunction, on the other hand, serves to secure an individual claim to a specific service or legal peace, and in exceptional cases also to temporarily satisfy a claim.
    1. The temporary injunction is regulated in §§ 935 - 945 ZPO and serves
      • the securing of compulsory enforcement on the basis of a claim that does not include a monetary claim or, if there is a risk that this claim is substantially frustrated or more difficult, its enforcement
      • the provisional settlement of a situation that is necessary to avert significant disadvantages or to prevent impending violence (e.g. when a domain or telephone connection is blocked, etc.),
      • the provisional satisfaction (limited to a minimum amount for a certain period of time) if the applicant is urgently dependent on the remuneration (e.g. maintenance, accident pension)
      For the time being, means here until clarification through the main issue, i.e. through the lawsuit.
    2. Admissibility and merits of the preliminary injunction
      As with any proceeding, the injunction also depends on the general admissibility requirements. In this respect, it does not differ from the normal lawsuit.
      1. The admissibility requirements are in particular the local and instance responsibility as well as an admissible application target. The latter requires that the requested preliminary injunction must refer to a claim that can also be enforced by way of the preliminary injunction. In this respect, it would be inadmissible, for example, to request the payment of a sum of money by way of an injunction or the deletion of a website due to illegal content via an interim injunction, because the latter claim can only be achieved in main proceedings, ie through an ordinary lawsuit.
      2. The temporary injunction is justified if in addition to active and passive legitimation
        1. there is a right of disposal. The applicant must have a claim against the debtor. The applicant must seek its security. In principle, the right of disposal can only be a claim that is amenable to provisional regulation or satisfaction.
          The following requirements are conceivable:
          • Injunctive relief
          • Elimination and revocation claim, provided that no final, irreversible circumstances are created (e.g. company deletion, destruction of advertising material)
          • Right to information, based on statutory provisions on the basis of the Product Piracy Act (eg § 19 III MarkenG, § 14 a III GeschmMG, § 101 a III UrhG, § 140 b III PatG, § 24 b III GebrMG) in the event of an obvious violation of the law, otherwise only, when existential creditor interests are affected.
          The following claims exclude an injunction:
          • Claims for submission of a declaration of intent
          • Declaratory claims
          • Claims for monetary damages
        2. there is a reason for disposal. A reason for a disposition exists if the issuance of an interim injunction is necessary to avert a risk to the interests of the creditors. This is necessary if there is urgency, i.e. if there are circumstances which, according to the objective judgment of a reasonable person, lead to fear that the realization of the individual claim is endangered by an imminent change in the existing situation.
        3. there is a proper application for a disposition in accordance with §§ 936, 920 ZPO. In the request for disposal (also called request for disposal), the claim for disposal and the reason for disposal must generally be made credible. In competition law and analogous to trademark law, however, urgency is generally assumed. According to §§ 920 Paragraph 3, 78 Paragraph 3 ZPO, the application can be made either in writing or in the minutes of the office. According to §§ 937, 943, 802 ZPO, the court of the main matter is responsible, in exceptional cases according to § 942 ZPO the court of the substantiated matter. In the case of legal violations via the Internet, this is to the extent that every court in whose district the legal violation can have an impact (disputed), § 32 ZPO.
    3. Legal consequences of the injunction
      According to §§ 936, 929 Abs. 2 ZPO, temporary injunctions must be executed within one month. In the case of injunctive relief, this is usually done by delivering the temporary injunction by a bailiff in the party company.

      A distinction must be made between the ruling and the ruling:
      1. In the case of a resolution, the specified monthly period begins with the delivery of the resolution to the obligee. According to Section 922, Paragraph 2 of the German Code of Civil Procedure, service on the debtor is not carried out by the court, but is the responsibility of the obligee. When the party is served, the ruling becomes effective and at the same time carried out in accordance with Section 929 (2) of the German Code of Civil Procedure (ZPO).
      2. In the case of a ruling, the one-month period begins with the announcement of the judgment in accordance with Section 929 (2) ZPO. The written judgment is served on both parties ex officio, but does not constitute an enforcement within the meaning of Section 929 (2) ZPO. It is therefore necessary for the creditor to serve the judgment again to the debtor in the party business. If the judgment is not immediately available in writing after its announcement, the obligee should immediately obtain an abbreviated copy which he can serve on the debtor within the one month period. However, the judgment is effective here even without the delivery caused by the obligee with the announcement and must be observed by the debtor from this point in time.

        Violations by the debtor of the injunction can be punished with fines of up to € 250,000.00 or detention for up to 2 years. According to §§ 890, 891 ZPO, these regulatory measures are to be threatened beforehand and can only be imposed after a new procedure has been carried out. The choice and severity of the regulatory means is at the discretion of the judging court and is always a question of the individual case.
  3. The injunction in practice
    Due to the only provisional regulation by the injunction, there are some special features for this procedure from the point of view of the most effective (= quick) legal protection possible:
    1. No prior hearing of the respondent / protective letter
      The applicant determines the procedure by submitting the application. Most injunctions are issued by the courts within a few days without an oral hearing. In these cases, the respondent usually does not learn anything about an application. He has no way of expressing himself in the proceedings. This - in itself questionable - disadvantage is accepted by the legal regulation in favor of the claim of the applicant for the granting of effective, i.e. rapid, legal protection. If, however, the issue of an interim injunction is to be feared, the respondent can bring his position to the court at an early stage by depositing a protective letter with the courts in question. The protective letter serves to explain your own point of view towards the court and is intended to influence the decision. It is not regulated in the ZPO, but more or less recognized as a legal institution. At least in competition law, it can be assumed that a protective letter deposited with the court will be observed. The protective letter must identify the parties precisely. It has the tenor that you were warned by your opponent, but did not submit to the warning for certain reasons that have to be explained in more detail. At this point in time, the court does not have to submit all of the legal views of a subsequent reply in the proceedings. For reasons of relieving the courts, a protective letter should be kept very brief and, above all, directed against the need for urgency. If there is no urgency, no injunction will be issued. If the urgency is not particularly high, the court will not issue the injunction without a prior oral hearing.
    2. Proof of evidence instead of evidence
      The granting of quick legal protection does not permit lengthy evidence to be taken. The facts that justify the claim therefore only have to be made credible for the time being. This means that, for the facts presented, a lower degree of probability than evidence requires is sufficient for the admissibility and merits of the application. The means of substantiation are the submission of documents and the affirmation of an oath. In addition, the submission of copies, party reports, etc. comes into consideration. In a later main proceedings, the lawsuit, the plausible disputed facts must be proven.
    3. Urgency of the application
      The matter must require this to justify the applicant's ability to use the injunction to obtain a title within a few days with only substantiation of the claim. There must therefore be an urgency of the matter.
    4. Prohibition of anticipating the main thing
      Due to the classification of the preliminary injunction as provisional legal protection, the main issue must not be anticipated. If, for example, the deletion of an Internet domain were requested from DENIC by means of an injunction, this would be a final decision that is reserved for the actual main proceedings. As a matter of principle, such a final concern cannot be asserted with the interim injunction. Exception: In order to provide effective legal protection, a final decision must already be made in the preliminary injunction proceedings.
    5. Injunction order of the court
      In practice, the decision of the court is usually issued as an order. For example, a specific act of infringement is prohibited under threat of fines or custody.
    6. costs
      If the injunction is successful, the respondent must bear the costs of the proceedings. The costs are based on the amount in dispute.
    7. Legal remedies and other options for responding.
      Often the delivery of an injunction comes as a surprise to the respondent. It should be borne in mind that the temporary injunction is regularly executed when it is served and must therefore be followed. Failure to comply may result in the imposition of a fine.
      1. Response options of the respondent
        1. Final declaration
          If an applicant has obtained an injunction, he has a substantively legally binding title, but only a provisional title with regard to the main issue. In order to make the injunction just as effective and permanent as a main title, the practice has developed the so-called final declaration of the debtor. In this, the addressee of the interim injunction recognizes the regulation issued by the injunction as the final regulation of the legal dispute and at the same time waives the rights from §§ 924, 926 and 927 ZPO. This eliminates the interest in legal protection for a lawsuit in the main, so that the often costly main proceedings can be avoided.
        2. Graduation letter
          The final declaration is usually preceded by a so-called final letter from the obligee. In this, the debtor is requested - in writing, to make sense - to submit a - appropriately pre-formulated - final declaration within a certain period. The deadline must be reasonable. The debtor should be granted at least four weeks from the delivery of the temporary injunction and at least two weeks from the receipt of the final letter.In addition, the letter must contain the threat of a main action in the event that the deadline is missed. If the final letter is drawn up by a lawyer, new costs arise, which the debtor has to reimburse as part of a claim for reimbursement according to the principles of management without engagement or for reasons of compensation. However, such a claim for reimbursement only exists if the respondent has been asked to submit the final declaration after a waiting period has expired. The waiting period must be sufficient to initially give the debtor the opportunity to submit the final declaration of his own accord. The case law assumes a period of two weeks to one month.
      2. The respondent can proceed as follows against the preliminary injunction:
        1. Objection according to § 924 ZPO
          If the preliminary injunction was issued without an oral hearing, an objection can be lodged in accordance with §§ 936, 924, Paragraph 1 of the German Code of Civil Procedure. The objection is not subject to a time limit. If it is only lodged after many months, the objection of forfeiture can be raised against it. According to §§ 936, 925 ZPO, the objection necessarily leads to an oral hearing on the legality of the temporary injunction, which is decided by a final judgment. If the temporary injunction is canceled, it will immediately expire. If the judgment is overturned in the appellate instance, the appellate court must issue the interim injunction again. According to §§ 936, 924 III 1 ZPO, the objection - in contrast to public law, for example - has no suspensive effect. The enforcement of the preliminary injunction is therefore not hindered by the objection. On application, however, the court can suspend enforcement in accordance with Sections 936, 924 (3) sentence 2, 707 ZPO until the objection has been decided. This is only possible in exceptional cases, for example if the court considers the objection to be clearly well founded. The court that has already issued the injunction is responsible. A higher authority is not reached with the contradiction. As long as the opposing factual presentation cannot be attacked, it can hardly be assumed that a different decision will be made, since the legal questions were already resolved by the same court when the injunction was issued.
          The objection is particularly useful if the execution of the preliminary injunction is suspended or practical considerations suggest this (eg a use-by period for advertising materials should be reached), if an appeal is to be lodged later and a higher court is to be addressed , or if the cost burden is due to a missing Warning appears unjustified. The objection can also be limited to the decision on costs.
        2. In the event that the respondent only wants to defend himself against the cost consequences of the temporary injunction because he considers the injunction to be justified, but the regularly required extrajudicial warning has not been issued, the following options arise:
          • Before or at the same time as the (full) objection, the respondent can submit a declaration of cease and desist with criminal penalties. The consequence of this is that the main thing has to be declared as settled and the applicant has to pay the costs according to §§ 91a, 93 ZPO.
          • The respondent can limit his objection to the costs right from the start, the so-called cost objection. The respondent thus implicitly acknowledges the right of disposal and implicitly waives the filing of a full objection. The cost contradiction is decided in accordance with §§ 936, 925 I ZPO through a final judgment.
        3. vocation
          If the preliminary injunction was issued after an oral hearing through a final judgment or confirmed after an objection has been lodged, an appeal according to § 511 ZPO is generally permissible. This can be the case if the court has doubts about the applicant's statements or if the effect of the injunction applied for is so serious (shutdown of production, prohibition of an advertising campaign) that the court cannot without such a serious interference with entrepreneurial freedom wants to issue a prior hearing of the opponent. In such cases, the court will not issue the preliminary injunction by decision, but immediately by judgment and thus only after an oral hearing has been scheduled. An appeal can only be made against the judgment. In this case, the proceedings will be continued independently of any main proceedings. A revision does not take place. If in the judgment, e.g. In the case of a mere cost contradiction, only the costs were decided, only an immediate complaint according to § 99 II ZPO is permitted.
        4. Application for an order to ascertain the main issue
          Since the preliminary injunction procedure favors the applicant, the respondent can use this legal remedy after submitting the application for injunction in accordance with § 936, 926 ZPO to present the applicant with the alternative of either bringing about a final decision in the main proceedings or risking the annulment of the preliminary injunction. In fact, he forces him to initiate the main matter - i.e. the legal action - because if this does not happen, the respondent can apply for the injunction to be annulled. This can be useful, for example, if there is no risk of repetition on the part of the respondent and infringer.
        5. Request for cancellation due to changed circumstances
          The respondent can request the annulment of the interim injunction in accordance with § 936, 927 ZPO if the actual circumstances that led to the issuance of the interim injunction have changed after its issuance to the effect that the interim injunction does not take into account the new circumstances is more justified. The application is not subject to a time limit, but is subject to the objection of forfeiture and waiver. If an objection or appeal has already been lodged, the changed circumstances can and must be asserted in these proceedings.
        6. Compensation according to § 945 ZPO
          If the order of the interim injunction proves to be unjustified from the start, the opponent can assert a claim for damages against the applicant in accordance with § 945 ZPO. This is no fault. In this respect, obtaining an interim injunction always carries a certain cost risk for the applicant.
        7. Application for security assessment / avoidance of foreclosure through security payment
          If the person concerned is threatened with considerable damage as a result of the anticipated court prohibition, the person concerned can also apply for the court to make the issuance of the injunction dependent on the payment of a security. The person concerned can also avert the enforcement of the temporary injunction by providing security. Here, the expected damage would have to be presented in detail and, above all, made credible.
      3. If the injunction is rejected, the applicant can proceed as follows:
        1. complaint
          If a requested preliminary injunction is rejected without an oral hearing, the applicant can lodge a complaint. If the preliminary injunction is not issued by the first instance as a result of the appeal, then the appellate court (the next instance) will make a final decision on the appeal. There is no further complaint. However, the applicant remains at liberty to initiate the main issue or to apply for a further preliminary injunction based on new facts.
        2. vocation
          If the preliminary injunction is rejected by judgment after an oral hearing, the applicant can appeal. The court of appeal decides in the final instance.
    8. Final clarification of the dispute
      In practice, interim legal protection often leads to a final clarification of the dispute. Many disputes are about clarifying legal issues. These are not judged differently in the interim legal protection than in the main proceedings. A summary examination only takes place with regard to the facts, but not with regard to the legal questions. The legal questions raised are examined in a preliminary injunction procedure in the same way as in legal action. The same courts and chambers have jurisdiction both in interim legal protection and in main proceedings. If a legal issue has been resolved by the instances in the interim injunction procedure, it is obvious that the same chambers will assess the legal situation in the same way in the main proceedings. For the unsuccessful party in the preliminary injunction proceedings, it is only sensitive to initiate the main issue if the dispute is about facts and not legal issues.
  4. D. The preliminary injunction in competition law and other special features there
    • According to Section 12 (1) UWG, those entitled to assert an injunction claim should warn the debtor before initiating legal proceedings and give him the opportunity to resolve the dispute by submitting an obligation to cease and desist with an appropriate contractual penalty. As far as the warning is justified, the reimbursement of the necessary expenses can be requested. From this it also follows that the costs for the defense against an unjustified warning of an infringement of competition law are not reimbursable, neither from the legal point of view of the management without an order nor of the intervention in the established and exercised commercial enterprise.
    • According to Section 12 (2) of the UWG, temporary injunctions to secure the claims for injunctive relief specified in the UWG can also be issued without demonstrating and substantiating the requirements specified in Sections 935 and 940 ZPO. In this respect, there is a special feature in competition law with regard to the request for an injunction. Section 12 (2) UWG contains a rebuttable factual presumption of urgency, with the result that this must only be presented and made credible by the applicant if it has been refuted by the respondent.
    • Pursuant to Section 15 (10) UWG, in the proceedings on the application for an interim injunction in a civil legal dispute in which a claim is asserted on the basis of the UWG and in which the competitive actions concern consumers, the court can at the request of one of the parties give the parties a new appointment to call the conciliation body before this date to bring about an amicable settlement if the opponent agrees to the request.
    • According to § 25 UWG, the urgency of the matter in competition law is presumed in favor of the applicant - rebuttable. Their behavior is of particular importance for their assessment. So - depending on the individual case - e.g. unjustified waiting after becoming aware of the antitrust violation, the presumption of urgency is no longer applicable. Mostly a period of inactivity of 4 weeks is required here. If there are objective reasons for waiting, then much longer periods of time can also be considered. The presumption of urgency can also be omitted for objective reasons, for example if the competition infringement cannot be repeated in a timely manner. Example: advertising on the occasion of a certain rare event.
    • Section 14 of the UWG stipulates that the court in whose district the defendant has his commercial establishment or, in the absence of such, his place of residence, is responsible for actions based on the UWG. The so-called "flying place of jurisdiction", which used to apply in competition law, is largely eliminated and, except in the case of unauthorized actions by the competitor, the seat of the respondent applies. The plaintiff has a choice of several (simple) places of jurisdiction.
    • Finally, in this area, the statute of limitations according to § 11 UWG from 6 months from knowledge to 3 years without knowledge must be observed. An exception applies to claims for damages which, even without knowledge, are statute-barred 10 years after their occurrence, at the latest after 30 years.
  5. E. The injunction in trademark law
    In trademark law, the injunction is particularly important. The above statements under B. and C. apply here.

    With regard to an unauthorized warning from a label - this also includes a trademark - the following special feature, which deviates from competition law, applies with regard to the obligation to bear the costs for the warning: Anyone who, without legal reason, warns a manufacturer or buyer of infringement of an industrial property right or a trademark right, is acting unlawfully and can be claimed on omission. Accordingly, whoever defends himself against such a warning and avails himself of legal help / legal advice can request reimbursement of the costs incurred from the person who issued the warning. The basis for the claim is Section 823 (1) of the German Civil Code (BGB) from the point of view of encroachment on the established and exercised business operations.
  6. F. The injunction in copyright law
    In addition to the aspects mentioned in B. and C., in copyright law with regard to the jurisdiction of the courts according to 105 UrhG, the state governments are empowered to assign copyright disputes for which the regional court is responsible in the first instance or in the appellate instance to one of them for the districts of several regional courts and by ordinance the copyright disputes belonging to the jurisdiction of the local courts for the districts of several local courts to assign to one of them.