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.