Category: Allgemein

  • Poaching and Diverting Clients by Exploiting Trade Secrets

    Poaching and Diverting Clients by Exploiting Trade Secrets

    Owner of a beauty salon successfully obtains an injunction against her former freelance employee (a physician)

    In preliminary injunction proceedings conducted by attorney Florian Daniel on behalf of the petitioner before the Berlin Regional Court, the former independent contractor (the respondent) was prohibited from poaching the petitioner’s clients by exploiting her knowledge of scheduled treatment appointments and/or, on the occasion of the respondent’s move to a competing business, actively calling the petitioner’s clients or having them called in order to redirect them to the respondent’s new place of business (for a future treatment appointment).

    Facts of the Case

    The petitioner operates a beauty salon with multiple locations in Berlin. The respondent worked there as a freelance physician.

    At short notice, the respondent terminated her employment and, as it subsequently transpired, assumed a managerial position at a direct competitor.
    In connection with the change in place of work, the petitioner – both personally and through another employee whom the petitioner had also terminated “out of the blue” and who subsequently – as it turned out – also obtained a prominent position at the competing beauty salon – rescheduled the petitioner’s clients.

    In doing so, the respondent made use of the petitioner’s APPOINTMENT DATABASE. Specifically, the respondent contacted – either directly or through the other employee – clients who had already scheduled a treatment appointment, with the aim of redirecting them to the new location.

    Furthermore, the respondent made use of the applicant’s CUSTOMER DATABASE, as she also contacted customers who were expected to have another treatment appointment in the (near) future. This customer data could only have been obtained from the relevant database, as the respondent contacted customers with whom she had never had any personal contact prior to this, even during her time as a (freelance) contractor.

    Decision

    The Berlin Regional Court issued the preliminary injunction as requested, without a hearing, despite the protective brief filed by the respondent’s authorized attorneys.

    In its reasoning, the Berlin Regional Court stated, among other things, that

    “the respondent’s actions—which have been credibly established – of rescheduling clients whose treatment appointments had already been arranged with the petitioner to the new clinic where she was working constitute an unlawful exploitation of the petitioner’s trade secrets. This is self-evident and requires no further justification. The applicant’s CLIENT APPOINTMENTS are its TRADE SECRETS (…)”

    It could be left open in this case whether the respondent would have been entitled, in the course of her work for the petitioner, to inform her clients there that she would soon be employed elsewhere. For that is precisely not what is at issue here with the rescheduling of clients by exploiting knowledge of the agreed-upon appointments.

    Likewise, the request to other clients of the plaintiff – who had not previously been treated by the defendant – to now seek treatment at the defendant’s new practice (also) clearly constitutes the unlawful and unauthorized use of the plaintiff’s trade secrets.

    The respondent’s affidavit, submitted in part as part of the protective brief, was unable to undermine the applicant’s prima facie case simply due to its lack of factual substance. The respondent’s further arguments regarding the issue of poaching employees were irrelevant because such conduct was not the subject of the motion for a preliminary injunction.

    Comment

    This decision has once again demonstrated how important trade secrets are to a company and how worthy they are of protection. Know-how and, in particular, a customer base that has in some cases been built up over many years are assets of a company that must be protected against unauthorized access and unlawful exploitation!

    In assessing the value of the claim for injunctive relief, the primary determining factor is the economic interest of the party seeking the injunction (= the petitioner) in the enforcement of the claim. This interest must be determined based on the severity (the “risk factor”) of the act to be prohibited, as indicated by the impending harm. It depends, among other things, on the effects of future infringing acts (scope, intensity, and frequency, as indicated by the infringing act already committed), the intensity of the risk of repetition (degree of fault, subsequent conduct, obligations to refrain from infringing acts toward third parties), and the risk of imitation.

    The Berlin Regional Court determined the value in dispute at its discretion pursuant to Section 3 of the German Code of Civil Procedure (ZPO) by way of estimation at EUR 40,000.00 in the preliminary injunction proceedings, which is 2/3 of the value of the main action amounting to EUR 60,000.00.

    Do you suspect that your (freelance) employee is betraying you?

    Are you concerned that trade secrets are being “stolen” from you and unlawfully exploited?

    Would you like to know what constitutes “trade secrets” and how they can be protected?

    I’d be happy to advise you—please contact me; I’d be glad to take on your case.

  • On the Liability of a GmbH Managing Director for Organizational Negligence

    On the Liability of a GmbH Managing Director for Organizational Negligence

    The Managing Director’s Personal Liability for Injunctive Relief Regarding Tortious Violations of Legal Interests by the GmbH

    The “new case law” of the Federal Court of Justice regarding the (personal) liability of a GmbH managing director for acts of unfair competition committed by the company he represents (BGH, judgment of June 18, 2014, Case No.: I ZR 242/12 – “Managing Director Liability”) is, according to the correct ruling of the Kammergericht, not applicable to facts that fall outside the scope of competition law.

    The preliminary injunction proceedings, conducted by attorney Florian Daniel on behalf of the petitioner, concerned the following:

    Facts of the Case:

    The respondent sent our client a newsletter that consisted primarily of advertisements for services offered by the company against which the injunction was subsequently sought. Our client had not given the respondent consent to send promotional emails.

    A letter from counsel objected to the legal violation and unsuccessfully demanded that both the GmbH and its (sole) managing director each undertake, under penalty of a fine, to refrain from sending such promotional emails. After the management also allowed the granted grace period to elapse without action, the petitioner sought a judicial ruling. The Berlin Regional Court ordered the first respondent—the GmbH—to cease and desist, as requested and pursuant to Sections 823 and 1004 of the German Civil Code (BGB), by way of a preliminary injunction.

    The 52nd Chamber of the Berlin Regional Court dismissed the injunction request directed against the second respondent—the managing director—on the grounds that, according to the “Managing Director Liability” decision(BGH GRUR 2014, 883), the managing director’s liability requires that the infringing act be based on conduct which, based on its outward appearance and in the absence of contrary findings, is attributable to the managing director. This was not the case here. Nor did the second respondent, as an interferer, contribute in any way—either intentionally or through adequate causation—to the infringement of the protected legal interest, thereby violating reasonable duties of conduct.

    By filing an immediate appeal, the petitioner seeks a judgment against the second respondent as well—namely, the managing director. She asserts that the email at issue was sent as part of a form of advertising initiated by Respondent No. 2 (direct marketing via a newsletter system) and that Respondent No. 2 failed to take the necessary steps to prevent the unlawful implementation of Respondent No. 1’s newsletter system.

    Reasons for the Decision:

    The Kammergericht deemed the immediate appeal admissible and well-founded pursuant to Sections 567(1)(2) and 569 of the German Code of Civil Procedure (ZPO) and, by order, held as follows:

    1.

    In cases involving the infringement of absolute rights, a person may be held liable for an injunction as a “contributor to the infringement” if—without being the perpetrator or a participant—they intentionally and with adequate causation contribute in any way to the infringement of the protected right. In this context, support for or exploitation of the act of a third party acting on their own initiative may suffice as a contribution, provided that the party against whom the claim is brought had the legal and factual ability to prevent such an act. Since liability as an interferer must not be unduly extended to third parties who cannot be held liable as either perpetrators or participants for the infringement committed, liability as an interferer presupposes a breach of reasonable duties of conduct, in particular duties to investigate. Whether and to what extent the party held liable as a “störer” can reasonably be expected to prevent the third party’s infringing act depends on the specific circumstances of the individual case, taking into account the party’s function and responsibilities, as well as the personal responsibility of the party who directly committed the unlawful infringement (BGH GRUR 2014, 657 – BearShare, para. 22 in juris).

    2.

    In accordance with the above principles, the second respondent is also liable for injunctive relief in the present case. The sending of the unsolicited promotional email infringed upon the applicant’s right to operate its established business. Under the circumstances, the infringing act is based on a decision and/or instruction by Respondent No. 2 to regularly advertise for Respondent No. 1 by sending a pre-formatted newsletter.

    As the sole managing director of Respondent No. 1, it is reasonable to expect Respondent No. 2—provided that the disputed email was not sent by her personally—to ensure, through measures to instruct and supervise employees, that the newsletter is sent exclusively to persons from whom a properly documented declaration of consent has been obtained (see BGH GRUR 2011, 926 – double-opt-in procedure).

    Even a single unsolicited sending of the newsletter to the petitioner establishes the risk of recurrence (see BGH MDR 2012, 1407 – para. 12 in juris), especially since the closing sentence of the newsletter indicates that there is a risk of recurring mailings if the “Unsubscribe” link is not clicked.

    3.

    The Senate (sole judge) granted the second respondent an opportunity in the appeal proceedings pursuant to § 571(4) of the German Code of Civil Procedure (ZPO) to fulfill its secondary burden of proof and to explain the measures intended to ensure that the newsletter is sent only to persons who have consented to its receipt.

    In response, Respondent No. 1 stated that distribution of the newsletter had been discontinued and that “until new email newsletters are sent out … the following measures have been initiated” (followed by a list of three safeguards).

    This statement allows for the conclusion that, at the time of the infringing act at issue in this proceeding —the time the promotional email was sent—Respondent No. 2 had not (yet) implemented sufficient safeguards, and the sending of the unsolicited email was due to inadequate organization of the newsletter distribution on the part of Respondent No. 2.

    There is therefore no basis for the assumption that the present case might have been an “outlier,” as can occur in a high-volume business despite careful safeguards (see OLG Hamm AfP 2015, 247, para. 3 in juris; Senate in 5 U 30/12, GRUR-RR 2013, 172, 177), there is therefore no basis for such an assumption.

    Comment:

    The question of whether a newsletter system or advertising via email should be part of a company’s business model or business operations is, in principle, left to the discretion of management. Accordingly, management decided at some point in the past that promoting the company through direct marketing measures should be an integral part of the business concept.

    This creates a source of risk for which a managing director is personally liable if the rights of third parties are infringed. Consequently, it is not the sending of the newsletter as a purely technical process, but rather the use of a direct marketing tool—which may even be an in-house tool and is (obviously) prone to errors—that forms the basis for liability. This is because, by deciding to conduct direct marketing via email, management knowingly and with adequate causation contributed to the infringement of the protected right (in this case: the right to establish and operate a business; informational self-determination; negative freedom of information) and violated reasonable duties of conduct.

    Since the Higher Regional Court of Düsseldorf had already recognized that, in the absence of suitable protective and control mechanisms, the managing director of a GmbH is personally liable for injunctive relief in the event of such legal violations, the Kammergericht has now also clearly rejected the applicability of the reduced liability for a GmbH managing director regarding the company’s violations of competition law, as established by the Federal Court of Justice.

    This is because the managing director of a GmbH has, among other things, a duty to protect the legal interest at risk from harm (position as guarantor), such that he can be held liable for a violation by omission to the extent that the monitoring and control duties required in the specific case are not fulfilled through appropriate measures.

    This responsibility for the actions of his employees applies to the GmbH managing director even if he was unaware of the infringing act—for example, because it did not fall within his area of responsibility. Thus, courts have repeatedly ruled in such cases that a managing director cannot exonerate himself by invoking an internal division of responsibilities, arguing that he is not responsible for the area of the company in which the unlawful act was committed.

    It should be noted in this context that the managing director of a GmbH is not only obligated to organize internal operations but is also, in particular, required to take preventive measures to avoid acts that infringe upon legal interests. Thus, he is subject to monitoring and oversight duties in this regard—including with respect to any agents!

    Only when the GmbH’s management has demonstrably fulfilled its organizational, monitoring, supervisory, and control duties can it, if necessary, be exonerated from allegations of misconduct giving rise to liability.

    The legislature has not specified how a managing director’s organizational and control obligations are to be fulfilled. Consequently, the legislature does not prescribe the company’s organizational structure but rather assumes it exists and grants companies corresponding organizational autonomy. In this context, it is the primary responsibility of management to document all significant decisions—as well as the decision-making process—in order to reduce the risk of liability.

    The question of to what extent you personally meet these organizational and control obligations is fundamentally a matter specific to your individual case.

    Please reach out to me and benefit from my expertise!
    I’d be happy to address your specific concerns and provide you with advice!

  • On the Publication of Private Information

    On the Publication of Private Information

    Attorney Daniel in an SR3 Radio Interview

    The publication of private information must always be carefully weighed.

    Not least because content published digitally, in particular, can now only be controlled with significant effort – both in terms of personnel and technology.

    In light of recent events: Jens Spahn’s Sardinia photo with a child

    The discussion surrounding the photos of Jens Spahn with his child at the airport in Sardinia has prompted me to revisit this topic – which I discussed many years ago – along with the brief radio interview. Back then – in 2013 – the focus was once again on the Chancellor’s vacation photos in Italy; the legal assessment has not changed to this day. The fact that the article published in BILD, along with the photo, was immediately deleted on the grounds that it was “private” is difficult to understand. At least to the extent that the child’s face is “pixelated,” there would be no legal obstacles to publishing the photo along with the accompanying report on Jens Spahn. Furthermore, the photo was taken on public property (during the German Bundestag’s session week) and was therefore by no means taken “by ambush” or even by trespassing on private property.

    The Interest of the Media and the Public

    The question of whether private matters should be presented to the public must be considered not only by the individuals concerned but also by the media, particularly online and print media. It should be noted that the rights to privacy (right of personality, right to one’s own image) are not violated to the extent that the person concerned publishes the material themselves. This is because voluntary publication implies consent, for example, from the person depicted.

    As a rule, this involves photos taken of A-, B-, or C-list celebrities that are then used throughout the media distribution chain – making the rounds.

    Günther Jauch has already taken a clear stance and accused the media of “calculated legal violations.” This is because the publishers in question are well aware that reporting on details of Jauch’s private life would not be tolerated. Nevertheless, it happens all the time. The fact that the number of legal violations is decreasing is likely due in particular to his consistent refusal to tolerate infringements of his right of privacy. Even though Günther Jauch has apparently won all the lawsuits, the media still calculate that it pays to report on the matter and, in particular, to publish photos. A simple calculation. How can circulation be increased? In what ways can the legal violation be exploited? And what does it cost to infringe on these rights (knowingly)?

    Such considerations lead to the conclusion that the infringement of personality rights is planned and occurs solely for economic reasons. So is this ultimately a form of organized crime? No! By definition, the media must not and should not exercise “self-censorship.” Reporting should and must take place. Media diversity is already in jeopardy, threatening to erode the last guardians of democracy. There can no longer be any talk of diversity in the media landscape – at least in the professional sphere. Regional offices are barely economically viable anymore. In the end, all media outlets get the same news from the major news agencies. So there’s no trace of diversity of opinion. But that’s another topic.

    When private matters are revealed to the public

    Unless you are classified as a relatively – or even absolutely – prominent figure in contemporary history due to your fame or exceptional abilities, you need give little to no thought to whether the publication, dissemination, or public disclosure of private matters – especially photos in which you are pictured – violates your rights. For, logically, common sense applies here as well – as it so often does. Of course, as is always the case with a few exceptions, you have the right to keep your private life private.

    The situation is different, however, for celebrities or politicians. While the publication of private information does, on the one hand, affect the personality rights of the person concerned or depicted, on the other hand, such publication also serves the public interest in being informed – or wishing to be informed – about certain events.

    The question of whether it “makes sense” to send just anyone out as a “photojournalist” to obtain (as inexpensively as possible) pictures of celebrities – in everyday situations – will not be explored further here. Otherwise, this article would quickly veer off into an entirely different topic. So, just briefly: No! It doesn’t. In my opinion, the people who shout “YES, IT DOES!” have no respect for the person living behind the “celebrity facade.” However, it also depends on how the person in question has behaved beforehand.

    Federal Constitutional Court (Caroline of Monaco)

    The Federal Constitutional Court ruled as early as 1999 that (even) top celebrities (“key figures in contemporary history”) have a right to privacy and that the scope of privacy is not limited solely to one’s own four walls. The Federal Constitutional Court expressed this as follows (BVerfG, ruling of Dec. 15, 1999, 1 BvR 653/96):

    “A public figure, like anyone else, has the right—which must be respected by third parties—to retreat to places outside their own home where they wish to be alone or, at any rate, secluded from the general public. They may also do so in places that are freely accessible to everyone, i.e., public places.”

    Unless the photo series is already being marketed by the celebrity as a “home story,” a balance must be struck between the public’s interest in information and the protection of privacy. In the specific case – which involved Caroline of Monaco – the Federal Constitutional Court held that the issue was one of “mere curiosity and sensationalism” as well as a “mere interest in entertainment.” Such an interest in entertainment, the Court ruled, is not worthy of protection when weighed against the right to privacy.

    Media publishers – in the interest of their readers – usually see things differently. The discussion then quickly turns to fundamental issues such as freedom of the press, the prohibition of censorship, and the necessity of free reporting. These are, in fact, matters of great importance.

    Back to the topic: Anyone who fails to defend themselves against a violation of their personal rights – and, if necessary, take the matter to court – runs the risk of having it held against them at a later date that they tolerated the (previous) publication and thereby implied their consent, even if not explicitly stated. For this reason, some celebrities, such as Günther Jauch, always take action against such publications to avoid being accused of having tacitly accepted – that is, tolerated – (potential) legal violations. In doing so, they would ultimately be exercising their right to successfully challenge the publication of private information.

    I can therefore only advise you to protect your right to privacy and to have potential violations reviewed by a legal professional and, if necessary, pursue legal action.

    I’d be happy to advise you – even if you’re toying with the idea of selling your soul to television. There are simply so many factors to consider that you should be aware of before making any important decisions.

    Günther Jauch summed it up perfectly during the coverage of his wedding when he said:

    “Some people use the media. They sell their marriage but then don’t want the divorce to be reported on two years later.
    That’s not possible.”

    The Chancellor’s 2013 Vacation in Italy

    When the tabloid press – after having played the same little game back in 2006, among other times – once again published photos from the Chancellor’s vacation in Italy in the spring of 2013, Ms. Merkel had her displeasure officially stated.

    Of course. The Chancellor must repeatedly take action against such publications – if only to avoid running the risk of no longer being able to take action against future publications. Otherwise, it would be claimed that Ms. Merkel tolerates the mass exploitation of her image (under the guise of the public’s interest in information), thereby forfeiting her right to intervene.

    Attorney Daniel was interviewed on this topic (the publication of the Chancellor’s vacation photos) by Saarländischer Rundfunk, SR 3 Saarlandwelle.

    You can listen to the recording from the “Guten Morgen” program aired on April 4, 2013, here.

    I advise and protect your entirely legitimate interests in cases of violations of personality rights. I will provide you with comprehensive information on the options available to counter such violations, particularly those resulting from the unlawful publication of photographs. With my many years of experience in the media sector, you’ve come to the right place when it comes to legal violations in the media.

  • The use of the ‘R’ symbol requires corresponding trademark rights

    The use of the ‘R’ symbol requires corresponding trademark rights

    The Berlin Regional Court has prohibited the use of the ® symbol (“R” in a circle”) even though a corresponding registered trademark is not in force.

    When using the ® symbol, corresponding TRADEMARK rights must exist!

    In preliminary injunction proceedings conducted by Attorney Daniel on behalf of the petitioner before the Berlin Regional Court, the (alleged) trademark owner was prohibited, under threat of statutory penalties, from using the ® symbol (“R” in a circle), even though no corresponding registered trademark is in force.

    When the symbol “®” is attached to a mark, the public expects that this mark is registered as a trademark for the user or, at the very least, that the trademark owner has granted the user a corresponding license.

    Consequently, the relevant public infers from the inclusion of the ® symbol that the mark in question is a registered trademark with precisely that content (see, e.g., Federal Court of Justice [BGH] in GRUR 1990, 364, 366 – “Baelz”; in GRUR 2009, 888 – “Thermoroll”).

    In fact, however, the company logo was not registered as a trademark.

    Nor is it sufficient that the respondent has filed an application for such a trademark, since the mere filing of an application does not yet create a trademark!

    The use of the ® symbol is therefore only permissible once a trademark has been registered, meaning that prior use constitutes an act of unfair competition. This is because the user misleads the public regarding the scope of (allegedly) existing industrial property rights and thereby engages in a deceptive business practice that is objectionable under unfair competition law (see also OLG Cologne, judgment of Nov. 27, 2009, Case No.: 6 U 114/09 – “® [R in a circle]”; Hanover Regional Court, judgment of October 22, 2013, Case No.: 32 O 29/13).

    Even though the ® symbol was visible only in small print on the defendant’s website, it was recognizable as such by the relevant public.

    Common symbols “in a circle” include the “C” for copyright and the “R” for a registered trademark; however, in this specific case, any connection to copyright was clearly ruled out, and the assumption that it was some kind of fanciful symbol was also far-fetched, since the symbol was placed exactly where one would expect a ® symbol—namely, attached to the upper right corner of the company logo.

    The respondent, represented by counsel, filed a written defense with the Berlin Regional Court after failing to respond to the prior cease-and-desist letter. Since the claim for an injunction remained valid even in light of the arguments presented in the written defense, the 15th Chamber of the Berlin Regional Court issued the requested injunction without an oral hearing.

    The grounds for the injunction were established, even though the defendant had already been issued two prior cease-and-desist warnings regarding this matter in close succession. This is because, despite the defendant having already submitted two cease-and-desist declarations, the infringement was still ongoing. There was no response to the third warning, so the plaintiff required immediate and effective protection.

    Do not “ignore” a cease-and-desist letter—and be sure to meet the deadline set for you!

    Attorney Daniel advises and protects your legal interests effectively and with a clear focus on your goals. My goal is to provide legal advice that is strategically and tactically sound and tailored to your specific case.

    Feel free to contact me with no obligation, and I’ll provide you with a legally sound initial assessment.

    Benefit from my outstanding expertise in trademark law matters and receive personalized advice. You’ll always receive personal and direct guidance from start to finish. Of course, every step will be closely coordinated with you. I look forward to hearing from you!

  • Time and again, this *darn* point of contention

    Time and again, this *darn* point of contention

    Those who look closely have the advantage!

    The plaintiff withdraws her motion for a preliminary injunction during the oral hearing before the Erfurt Regional Court (gritting her teeth).

    In a preliminary injunction proceeding conducted by Attorney Daniel before the Erfurt Regional Court, in which the defendant’s legal interests were represented, the plaintiff withdrew her motion seeking a prohibition order. The costs of the proceedings were imposed on the opposing party (the plaintiff).

    Facts of the Case

    The case concerned automotive accessories that the defendant sells through his eBay shop. Since a specific trailer hitch he offered was allegedly not roadworthy – as it was not approved under road traffic regulations – a cease-and-desist letter was issued, and, among other things, a declaration of discontinuance was demanded.

    Already during the pre-trial proceedings, attempts were made to explain to the plaintiff – a limited liability company (GmbH) that sells such products on a large scale – that the asserted claim had no merit. Unimpressed by this, the plaintiff sought a preliminary injunction after the defendant refused to issue a cease-and-desist declaration.

    Since this was to be expected, Attorney Daniel drafted a protective brief on behalf of the defendant, whereupon the Erfurt Regional Court scheduled an oral hearing. At this hearing, the plaintiff appeared, among other things, with an expert witness who was supposed to confirm the (allegedly non-existent) marketability of the trailer hitch offered by the defendant. *Unfortunately*, the expert had, on behalf of the plaintiff, examined a different model of trailer hitch, so that the counterargument – which would otherwise have been relevant anyway – no longer mattered. The ball head of the trailer hitch (a distinction is made, in particular, between so-called rigid and flexible models; in the case of flexible models, the ball head of the trailer hitch can be removed in just a few simple steps) allegedly obscured the license plate of a specific vehicle model, which is why the rigid model of the trailer hitch could not be sold.

    The plaintiff attempted to salvage the proceedings by arguing that the trailer hitch examined by the expert was of identical construction to the trailer hitch offered by the defendant. This was – admissibly – disputed on the grounds of lack of knowledge. Consequently, the cease-and-desist letter and the sought-after injunction related to a different subject matter of the dispute, leaving the plaintiff with no choice but to withdraw its motion for a preliminary injunction.

    Comment

    The “subject matter of the dispute” refers to the matter to be decided in civil proceedings. This is a central concept in civil procedure, yet the law uses it ambiguously. An unambiguous designation or definition (legal definition) does not exist – even though it is a term of the utmost importance.

    For example, the Code of Civil Procedure (ZPO) refers to the “subject matter of the legal dispute,” the “claim sought,” or simply the “asserted” or “disputed” claim.

    The subject matter of the dispute is decisive, among other things, for:

    • the scope of lis pendens
    • the scope of res judicata
    • the question of an amendment to the complaint
    • the existence of an objective joinder of claims
    • determining territorial and subject-matter jurisdiction
    • the amount in dispute.

    In legal literature, the concept of the subject matter of the dispute is highly controversial.  However, prevailing doctrine and case law are based on a two-part concept of the subject matter of the dispute.

    The content and scope of the subject matter of the dispute are determined, on the one hand, by the relief sought in the complaint and, on the other hand, by the cause of action – that is, by the factual circumstances presented to substantiate it. A set of factual circumstances exists when it involves an actual event that, viewed from a natural perspective, constitutes a single, coherent sequence of events.

    Pursuant to § 253(2), second sentence, of the German Code of Civil Procedure (ZPO), the complaint must contain a specific statement of the subject matter and the basis of the claim asserted, as well as a specific request. This at least outlines the concept of the subject matter of the dispute.

    The question of the subject matter of the dispute coincides with the question of whether, based on the action brought, under the procedural circumstances determined by it, and based on the factual circumstances introduced into the legal dispute by the complaint, the relief sought can be granted.

    In the present case

    In the present case, the plaintiff had not looked closely enough, which proved to be her “undoing.” This is because the motion for a preliminary injunction challenged a specific trailer hitch as (allegedly) unfit for use on public roads, which the defendant, however, had not offered in its product line. In doing so, the plaintiff made a serious error that not only prevented her from obtaining relief on the merits but also resulted in her being ordered to pay the costs of the litigation.

    It is therefore always advisable to examine a cease-and-desist letter very carefully in order to identify any errors on the other party’s part and/or to have the validity of the claim itself reviewed.

    Have you received a cease-and-desist letter and can’t imagine that the conduct you’re accused of is accurate?

    Have you received a cease-and-desist letter and have no idea why?

    Have you received a cease-and-desist letter and are unaware of any “wrongdoing”?

    I represent your interests both out of court and before all local, regional, and higher regional courts, as well as the Berlin Court of Appeal, throughout Germany.

    Please contact me; I would be happy to take on your case.