Cease-and-desist declaration by minors ineffective?

The Regional Court (LG) Düsseldorf had to clarify the indeed significant legal question of whether a minor engaged in trade with the permission of his parents can issue effective cease-and-desist declarations with contractual penalty undertakings in the course of conducting his business operations, or whether this obligation rests with his legal guardians.

The point of departure for the decision handed down by the Regional Court (LG) Düsseldorf was an offer on an online platform operated by a 17-year-old with parental permission on Amazon. The minor had used the mark "PrimaCase" in the distribution of mobile phone cases, which is registered as a trade mark for an online retailer. In doing so, the young person had used the mark unproblematically without the consent of the trade mark owner in the course of trade.

The online retailer then sent a paid written warning to the minor and demanded that the minor's parents issue a cease-and-desist declaration with contractual penalty undertaking. The minor ultimately personally issued a cease-and-desist declaration with a contractual penalty undertaking.

However, the online retailer did not accept this and brought an action before the LG Düsseldorf for a cease-and-desist injunction and damages. He took the view that the cease-and-desist declaration personally issued was ineffective because the 17-year-old had only limited contractual capacity and therefore required the consent of his parents to issue the cease-and-desist declaration.

Decision of the court

By means ofjudgment of 20.01.2014 – Az. 2a O 58/13 U – the Regional Court (LG) Düsseldorf ruled in favour of the online retailer, as the defendant, who was born on 05.08.1995, was only 17 years old at the time of issuing the cease-and-desist declaration and therefore could not himself issue a legally effective cease-and-desist declaration.

This was not changed by the fact that his parents had consented to the business activities of their son and that the guardianship court had granted its approval by way of a decision to this effect. The legal transactions falling within the scope of the partial contractual capacity conferred by the permit had to have a connection with the establishment or conduct of the business enterprise.

The issuance of a cease-and-desist declaration with a contractual penalty undertaking in the event of an infringement of protective rights did not satisfy these requirements. Rather, the issuance of a cease-and-desist declaration concerned cases in which the business operator, circumventing trade mark law provisions, acts contrary – at least from a legal perspective – to his business operations. Such legal transactions are not characteristic of online retail and require the additional consent of the parents.

Conclusion

Minor business operators cannot themselves issue a cease-and-desist declaration with a contractual penalty undertaking to remedy the infringement following a written warning. If the cease-and-desist declaration is not signed by the legal guardians, the party sending the written warning may bring an action against the minor for a cease-and-desist injunction.

The decision of the Regional Court (LG) is certainly comprehensible in view of the generally unlimited binding nature of the cease-and-desist agreement and its potentially serious consequences in the event of renewed infringement.