Full costs of cease-and-desist letter in case of partial success of the party sending the letter?

The legal fees to be paid by the unsuccessful party are generally determined both in and out of court according to the matter in dispute assumed in the cease-and-desist letter as a whole for the various breaches. If multiple claims are asserted in a cease-and-desist letter, but only partly justified, the question arises whether the party sending the letter can nonetheless demand the entire costs of the cease-and-desist letter from the opposing party, or whether the opposing party is at least not obliged to bear a portion of the costs of the cease-and-desist letter.

In the case underlying the decision, two telecommunications providers disputed over competition law advertising statements, in particular the price information of the competitor regarding an internet flat rate and transmission speeds stated in the advertising. The advertiser was to be forced to cease its advertising campaign through a cease-and-desist letter.

Decision of the court
After the Federal Court of Justice (BGH) in its judgment of 10.12.2009 – Az. I ZR 149/07 only partly upheld the claims of the party sending the letter, the latter had to clarify whether the addressee of the cease-and-desist letter should nonetheless bear the full costs of the cease-and-desist letter.

The BGH decided that, insofar as the amount of the costs of the cease-and-desist letter is determined according to the matter in dispute of the cease-and-desist letter, the costs of a cease-and-desist letter which is only partly justified are to be reimbursed only insofar as the cease-and-desist letter was justified. In doing so, the amount of the reimbursement claim is to be determined according to the ratio of the matter in dispute of the justified part of the cease-and-desist letter to the matter in dispute of the entire cease-and-desist letter.

Conclusion:
Even if the cease-and-desist letter directed against you or your company may be partly justified, it is worthwhile to examine the claims directed against you in detail. In addition to a restriction of the declaration of undertaking to be issued, this can also reduce the costs incurred. For the party sending the cease-and-desist letter, it is important to define its claims in detail in advance.