Scope of a cease-and-desist declaration

When a recipient of a cease-and-desist letter issues a declaratory statement on pain of penalty (strafbewehrte Unterlassungserklärung), the risk of repetition existing due to the infringement is regularly eliminated. However, can the recipients of a cease-and-desist letter limit the declaration to advertising on the Internet, or is that not sufficient? The Higher Regional Court (OLG) Frankfurt am Main provides an answer to this question.

An enterprise that manufactures devices for health monitoring and aesthetic therapy advertised various devices and treatments on the Internet in a manner contrary to competition law.

In response to the applicant's cease-and-desist letter, the enterprise did issue a declaratory statement, but expressly limited it to advertising on the Internet.

In the view of the party sending the cease-and-desist letter, a declaratory statement limited in this manner does not eliminate the risk of repetition.

The court's decision on the declaratory statement

The Higher Regional Court (OLG) Frankfurt a.M. ruled in favour of the party sending the cease-and-desist letter and decided in Beschluss vom 25.01.2016 – Az. 6 W 1/16 that a declaratory statement on pain of penalty, which is expressly limited to advertising on the Internet, does not eliminate the risk of repetition and therefore is not sufficient.

The Frankfurt court justified its decision on the grounds that a violation gives rise to the presumption of risk of repetition not only for the identical form of infringement, but also for all substantially similar forms of infringement.

The risk of repetition also encompasses forms of advertising other than advertising on an Internet website, for example the distribution of a brochure posted on the Internet as a printed publication.

Conclusion

A limitation of declaratory statements on pain of penalty to advertising on the Internet should be avoided in order to genuinely eliminate the risk of repetition. Otherwise, the recipient of the cease-and-desist letter risks being sued by court for a cease-and-desist order.