Obligation to abstain = obligation to recall?

If a company is required by court judgement not to distribute certain goods, the question arises as to how far the obligation to abstain extends. Is the party bound by the abstention obligation also obligated to recall products distributed by retailers who are not integrated into its distribution structure? The Higher Regional Court (OLG) Frankfurt am Main had to decide this question.

A company was prohibited by preliminary injunction from putting certain goods into circulation or advertising them due to a trademark infringement. The preliminary injunction was confirmed by a judgement of the Regional Court (LG) Frankfurt a.M. following an objection by the company.

However, after the judgement, the products were still available for sale in part from wholesalers. Thereupon, the creditor applied for the imposition of a penalty. He is of the view that the debtor was obligated to recall the already delivered goods and that by failing to recall them, he violated the court order to abstain.

The court's decision

The OLG Frankfurt a.M. held a different view. In itsBeschluss vom 19.09.2016 – Az. 6 W 74/16the court decided that the company had not violated the preliminary injunction.

Although the party bound by a court prohibition must do everything that is necessary and reasonable in the concrete case to prevent future violations, the Frankfurt judges rejected the obligation to recall goods already delivered from wholesalers. The wholesaler, who was not integrated into the distribution structure of the debtor, was an uninvolved third party. The prohibition to abstain was directed only at the debtor itself. The debtor was generally not responsible for the actions of a third party, and therefore no obligation to recall applied to it.

Conclusion

A party bound by an abstention obligation prohibiting the distribution of certain goods is not obligated to recall these products from retailers who are not integrated into its distribution structure. However, other higher regional courts take a different view. The Federal Court of Justice (BGH) has not yet expressly taken a position on this matter, which means there is legal uncertainty in this area.