Higher Regional Court Frankfurt (OLG Frankfurt) declares interim injunction inadmissible due to abuse of rights in filing the application

Abuse of rights in injunction claims. Higher Regional Court Frankfurt (OLG Frankfurt) strengthens procedural equality of arms and sets boundaries in competition law(judgment of 17 April 2025, Az. 6 U 310/24).

The starting point: cease and desist letter against Spanish manufacturer

The dispute began with a cease and desist letter from a German competition association. It called upon a Spanish company to cease making certain health-related advertising claims and to adapt its product labelling. The respondent operates in the field of dietetic foods for medical purposes. The cease and desist letter was sent on 13 June 2024 with a deadline set for 20 June.

The disputed interim application: response ignored, injunction requested

Despite timely response by the respondent – by e-mail on 20 June and again on 28 June and 5 July – the applicant filed a request for an interim injunction on 4 July and claimed that no answer had been received. The Regional Court Frankfurt (LG Frankfurt) issued the requested injunction on 8 July, which was served on the applicant on 9 July.

What was the interim injunction intended to prohibit?

The subject matter of the requested interim injunction was a comprehensive prohibition on the distribution and advertising of several dietetic products such as "DAOfood", "DAOfood Plus", "DAOhead" or "fibroDAO". According to the applicant, these should no longer be marketed as foods for special medical purposes with the intended use "for dietary management in case of DAO deficiency". Furthermore, numerous health-related advertising claims, such as claims relating to the treatment of histamine intolerance, migraine or fibromyalgia, were to be prohibited. The applicant considered these to be violations of food law provisions and misleading advertising within the meaning of the UWG.

Communication gaps or deliberate deception?

The applicant corrected his statements to the court only on 10 July. He explained that the respondent's e-mails had ended up in the spam or trash folder or were incorrectly marked as "read". He claimed that the late response was not an attempted deception, but rather an oversight. However, the courts were not convinced by this.

The judgment of the Higher Regional Court Frankfurt (OLG Frankfurt): abuse of rights without malicious intent

The Higher Regional Court Frankfurt (OLG Frankfurt) recognised this approach as an abuse of rights, even without evidence of intentional deception. The court found that what was decisive for a finding of abuse of rights was that the applicant had voluntarily assumed responsibility for fair proceedings by sending a pre-court cease and desist letter. Anyone who tells the court that there was no response to a cease and desist letter must first ensure that he actually receives and forwards any potential replies.

Procedural equality of arms in interim proceedings particularly deserving of protection

The panel clarified: the possibility of obtaining an interim injunction without hearing the opposing party is a significant procedural abbreviation – and therefore only permissible under strict observance of the principle of fair proceedings. Anyone who acts in this manner may not rely on the excuse of having "overlooked" e-mails, particularly not when these were announced in advance, were relevant and were to be expected.

No general duty to take receipt precautions – but very much so in competition law

While there is generally no obligation to comprehensively check e-mail mailboxes for responses, anyone who – as in this case – sets a deadline for submission of a cease and desist declaration and plans to file for an injunction,mustexpect that replies will arrive. The duty to carefully check – including spam or trash folders – then arises from the principle of good faith (§ 242 BGB).

No loss of substantive claim – but of the title

The Higher Regional Court made clear that this was not a question of whether the applicant had any justified injunction claim at all. What was decisive was solely the manner of conduct of proceedings. The dishonest conduct resulted in the interim injunction that had been issued being revoked due to abuse of rights – but the claim can continue to be pursued in the main proceedings.

Practical tips for companies and claimants

The judgment of the Higher Regional Court Frankfurt (OLG Frankfurt) is an important signal for all actors in competition law. Anyone who sends cease and desist letters and applies for interim injunctions must observe the procedural rules closely, in particular with regard to the transmission of information to the court.

Our law firm AVANTCORE has extensive experience in competition law. We represent your interests with commitment and competence in the assertion or defence of competition law claims. Our range of services covers both interim legal protection and representation in main proceedings. In doing so, you benefit from our long-standing experience in competition law, our in-depth specialist knowledge and strategically oriented conduct of proceedings.