Dispensability of a warning notice in cases of established futility

The out-of-court warning notice is merely an obligation with regard to cost recovery, but not a prerequisite for admissibility of court proceedings. The warning notice may even be dispensable if its futility is foreseeable or if it is unreasonable for other reasons. However, a deliberate or intentional breach of competition law alone is not sufficient for this purpose without the addition of further circumstances.

The subject matter of the proceedings was a dispute concerning the admissibility under competition law of an advertisement for internet access services which did not mention separately incurred telephone connection charges.

Pursuant to § 93 ZPO, which applies accordingly in preliminary injunction proceedings, the procedural costs shall be borne by the applicant if the respondent immediately acknowledges the asserted claim and has given no occasion for the initiation of court proceedings. From the perspective of the claimant, the preceding notice of the objected conduct in the form of a warning notice provides a means of eliminating this risk, since the party receiving the warning notice is thereby given the option of whether to comply or to contest (cf. Higher Regional Court (OLG) Düsseldorf NJW-RR 1997, 1064).

The court's decision

A different position is taken by the court (Higher Regional Court (OLG) Schleswig, order of 04.04.2000 – 6 W 7/00) if it is not promising from the outset or is unreasonable for other reasons to request the infringer to cease the infringement before resorting to legal proceedings (cf. Higher Regional Court (OLG) Dresden NJWE-WettbR 1999, 16 (17) et seq.; Higher Regional Court (OLG) Cologne GRUR 1988, 487). This is particularly the case if the impression must have arisen that the infringer would not comply with the warning notice but rather intended to continue its anti-competitive conduct for some time in reliance on the service of a warning notice.

Whereas the lower court (Regional Court (LG) Flensburg) had previously assumed that the respondent was an experienced company with extensive legal advice, which made the success of the warning notice appear unlikely, the appellate court was not willing to follow this view. While these circumstances suggest intentional or deliberately negligent conduct by the respondent, this constitutes a reason to dispense with the requirement of a warning notice, even in the case of major companies, only if it can be inferred from the circumstances that the infringer would not comply out of court. No established principles of experience can be determined in this regard, which is demonstrated in particular by the respondent's immediate compliance in the proceedings.

Unreasonableness of the pre-court warning notice exists when the circumstances show that the infringer acts as a 'serial offender' with particular persistence or malice. In the case of mere urgency, these requirements are in any event not met: urgency is in principle only suitable for reducing the reasonable time limit set – if necessary to 1 hour – but not for establishing the unreasonableness of the warning notice. Different rules apply, for example, in cases of trademark counterfeiting and one-off or short-term advertising measures.

The warning notice was therefore, in the view of the Higher Regional Court (OLG) Schleswig, not dispensable in this case, with the result that the claimant had to bear the procedural costs despite success in the matter.