Successfully Defend against Warnings

Warnings

Warnings are particularly common in commercial legal protection, in competition law, in copyright law and in trademark law.

Definition of “Warning”

A warning is an out-of-court request to cease and desist. With it, the warner requests the warned party to immediately cease infringing the rights of the warner.

Peter Harlander
Harlander & Partner Rechtsanwälte „Eine Abmahnung bedeutet daher immer einen sofortigen Handlungsbedarf. Wer schnell reagiert, hat deutlich bessere Karten. Die Praxis zeigt auch, dass viele Abmahner ein Antwortschreiben vom Abgemahnten selbst nicht ernst nehmen, sondern den Druck immer weiter erhöhen, solange kein Anwalt antwortet.“

Legal Background

Theoretically, the warner could also file a lawsuit in court without sending a warning beforehand. However, this procedure would be extremely risky for the warner:

1. The legislator wants to prevent the courts from being overloaded. Therefore, the plaintiff should contact the defendant in advance in order to settle the legal dispute out of court. If the plaintiff omits the out-of-court request, then the legislator “punishes” the plaintiff in the form of a cost risk.
   It works as follows: If the defendant acknowledges the claim immediately at the beginning of the court proceedings and has otherwise given no cause for the lawsuit beyond the actual infringement, then the plaintiff has won the court proceedings, but must nevertheless bear all the costs of the proceedings.
2. It is also conceivable that the warner warns (without intent) wrongly, e.g. because he did not know the full facts. In this case, too, the warner benefits from a cost-effective out-of-court settlement.

Abusive Warnings

In principle, a warning would therefore be a sensible, legally provided instrument for the out-of-court settlement of legal disputes.

Peter Harlander
Harlander & Partner Rechtsanwälte „Die Praxis ergibt jedoch ein anderes Bild. Die Quote der missbräuchlichen Abmahnungen ist enorm hoch. Zirka zwei Drittel aller Abmahnungen, welche wir von Abmahnopfern zur Prüfung erhalten, sind entweder gänzlich unberechtigt oder überhöht.“

As an aid, we show in this article how we proceed when reviewing warnings. We also offer a free initial analysis of the warning by our lawyers.

Review of Warnings

We proceed step by step when reviewing warnings:

1. Existence of the infringement

First things first: does the alleged infringement even exist? This is not the case with numerous warnings.

In copyright law, this question is usually easy to solve. Anyone who uses a third-party work must provide proof that they are entitled to use the work.

In competition law and trademark law, on the other hand, the legal situation is often not clear due to the inconsistent court rulings. This uncertainty can definitely be an advantage from the point of view of the warned party. The warner’s decision to file a lawsuit in court becomes much more difficult as soon as risks become apparent.

2. Legitimation of the warner

In copyright cases, the warner has to prove his rights to the work. This proof can be complex to verify for companies that buy up and pursue third-party rights.

In competition law, so-called protection associations are also entitled to issue warnings if they meet the requirements for this. Especially with smaller protection associations, however, the legitimacy to assert the claims is often doubtful and must be checked.

3. Scope of the cease-and-desist declaration

Warners often demand a cease-and-desist declaration that goes far too far. This is extremely dangerous for the warned party, as it makes it much easier for them to be confronted with new demands in the future.

Peter Harlander
Harlander & Partner Rechtsanwälte „Ohne Übertreibung: einzelne Wörter können bei der Unterlassungserklärung bedeutende Unterschiede bewirken. Wer eine Unterlassungserklärung ohne anwaltliche Prüfung unterschreibt, riskiert dementsprechend viel.“

4. Amount of the contractual penalty

The submission of the cease-and-desist declaration should generally be subject to a penalty. In this case, the warned party must commit to paying a contractual penalty in the event of a new violation.

In Austria, however, the obligation to pay a contractual penalty is not absolutely necessary. Instead, the warned party can also declare its willingness to submit an enforceable, notarial settlement. This procedure significantly reduces the follow-up risk for the warned party.

5. Amount of the value in dispute

The value in dispute in a legal case is the basis for calculating the attorney’s fees. Excessively high values in dispute are found in particular in copyright cases.

6. Amount of the attorney’s fees

If the warning is justified, then the warner has a claim for reimbursement of his attorney’s fees. The amount of these costs is based on the attorney’s fee schedule and varies depending on the value in dispute and the services necessary for the appropriate legal prosecution.

In many cases, a significant cost reduction can be achieved.

7. Risk of the warning

As a final step, an overall assessment of all factors is carried out. This gives an answer to the following questions:

• Is the complete defense against the warning realistic?
• Are there possibilities to mitigate the legal consequences?
• Is a reduction of the financial claims possible?
• How should we proceed to achieve an optimal result?

Peter Harlander
Harlander & Partner Rechtsanwälte „Eine korrekte Einschätzung dieser Fragen ist nur mit Erfahrung möglich. Riskieren Sie daher im Fall einer Abmahnung keinen Alleingang. Ich unterstütze Sie gerne.“

Free Initial Legal Assessment

Due to the many possibilities for warners to trick, every warning without exception must be checked by a lawyer. This also applies if the warning looks justified at first glance.

Attorney Peter Harlander has been dealing with copyright law, trademark law and competition law for over 20 years. Therefore, he knows the tricks of the warners to construct the highest possible claims.

We would be happy to give you a free initial assessment of the chances of success of a warning and discuss the further procedure.