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Improper Warning Notice Due to Breach of Copyright Does Not Render Action Inadmissible

The Federal Court of Justice clarified that an improper warning notice due to a breach of copyright does not always extinguish the injunctive relief.


North Rhine-Westphalia, Germany -- (SBWIRE) -- 02/17/2013 -- GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London explain: This also does not therefore have to render a consecutive action inadmissible. In the event of an improper warning notice, the party concerned should not have to definitively accept the infringement.

The circumstances that the Federal Court of Justice (judgment of 31.05.2012, Az.: I ZR 106/10) had to deal with concerned the design of a website of the claimant for marketing holiday accommodation. The claimant found that this website, including the pictures located on it, could be accessed from four other websites and thus felt that his rights with regard to the photographs had been infringed. As a result, he demanded that the defendant owners of the four websites, among other things, desist from publishing and distributing his pictures without his consent.

The appellate court had considered the action to be impermissible, since the warning notice brought by the claimant before the action was, in the view of the Court, an abuse of law due to an improper cost burden interest of the claimant. This lead to the claimant’s injunctive relief being dropped, and thus also the right to sue.

The Federal Court of Justice, however, clearly disagrees. In competition law, an improper, extrajudicial enforcement of injunctive relief within the meaning of the Act Against Unfair Competition (UWG) does indeed also result in the injunctive relief no longer being judicially enforceable, but this principle cannot be thus simply transferred to copyright law. The Federal Court of Justice reasoned that in copyright law it is the party affected alone who is able to assert claims. This possibility should not be taken away from him too hastily.

In the case of unsubstantiated warning notices, the claimant does not, however, have a claim for reimbursement of the costs of issuing the warning. It is therefore always advisable to obtain legal assistance at the time of drafting a warning notice, so that, from the beginning, you are able to react correctly in the event of a breach of copyright.

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GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.

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