Elimination of the risk of repetition by means of a cessation declaration

If the creditor in a cessation claim accepts without reservation the cessation declaration demanded by him and issued by the debtor, the risk of repetition ceases to the extent to exist as a basis for a cessation claim. This also precludes the assertion of a claim going beyond the cessation contract arising from the same infringing act.

In the present case, the cessation declaration demanded by way of a cease-and-desist letter was issued by the later defendant. The plaintiff is now asserting a more extensive claim for cessation before the court.

The court's decision

The court dismissed the action by judgment of 05.06.2003 (Az. 3 U 171/02). By the express and unconditional acceptance of the defendant's offer to conclude a cessation contract that prohibits the objectionable conduct, the plaintiff has bound herself in such a way that, in the context of the concrete infringement case, she may not assert claims going beyond this cessation contract. This follows from the purpose of the contract to eliminate the risk of repetition following an infringing act and thus to avoid the conduct or continuation of court proceedings.

Conclusion

The judgment is of particular significance for cases in which the cessation debtor issues a modified cessation declaration—relating exclusively to the concrete form of infringement—as was requested (in preformulated form) in the cease-and-desist letter. Once the creditor accepts this declaration, he must be confronted with the fact that it was the jointly expressed intention that only this form of infringement should be covered.