Basic knowledge about warning notices
Warning persons complain of an infringement of their rights and assert a claim for injunction. The party issuing the warning would like to give its counterparty the opportunity to settle the infringement of rights committed out of court. Warning letters are usually sent by lawyers and combined with a contract offer. The Contract contains a declaration of omission and commitment, the violation of which is punishable by a contractual penalty.
Serial dunning notices and authorization request
Serial warnings reprimand conduct that is present in a large number of people. A serial warning is when the same warning is sent several times - only the name and address are changed. Serial warnings are common and generally not prohibited. An exception are serial warnings, which are solely directed at the purpose of generating warning costs. A warning notice can be preceded by an authorisation request. In this case, the other party is requested to provide certain information. For example, from which right they derive their actions or whether they are aware of the infringement of rights complained of. A request for authorisation is a kind of invitation to a pre-litigation exchange of information. An authorisation request is useful if the legal situation is unclear. Anyone who issues an unjustified warning can ask the person issuing the warning for reimbursement of the Costs of his defense.
Requirements for a warning letter
An effective warning contains six conditions. Creditors and debtors must be precisely identified. If the creditor is represented by a lawyer, the lawyer should present a power of attorney issued in writing. The creditor must explain the reasons for the warning. The legal provisions should be stated and the behaviour of the debtor to be objected to should be described. The creditor must make it seriously clear to the debtor that the latter must refrain from the conduct in question. For this purpose a punishable Cease and desist declarationwhich should prevent a repetition. Pre-formulated cease and desist declarations are not binding, but they do make sense. The contractual penalty should be within a moderate range. The deadline for signing the declaration should be reasonable. The creditor can threaten the debtor with legal action if the deadline is not met. The party issuing the warning can demand the lawyer's fees incurred. Lawyers do not have to prove that they have been commissioned. In principle, it is sufficient that they insure a proper power of attorney.
Things to know about warning notices
Those persons whose rights have been violated may issue warnings. In copyright law, this includes the author, his or her licensees and interest groups such as GEMA. In competition law, they are primarily associations promoting professional interests and competitors. The most important sentence in warnings is the request to refrain from infringing acts. These are combined with the claim for reimbursement of the costs of the warning notice and other claims for damages. In order for the person issuing the warning notice to be able to assert his claims, he is entitled to obtain information. Whoever is warned should not take the warning notice lightly and react to it. Those affected should consult a lawyer and have it checked whether the warning is justified. Members of associations such as the IHK can ask the legal departments there for information. If the warning notice contains an extremely short deadline, you can inform the person issuing the warning that you will respond within a reasonable period of time - for example, within one week. Warning notices cause costs which have to be borne by the infringer. The person whose right is infringed should not have to bear the additional costs of the associated legal action. The costs of a warning notice include, among other things, attorney's fees. Their amount depends on the amount in dispute. This is calculated according to the economic interest of the party issuing the warning to refrain from the conduct complained of. The exact costs can be looked up in the Lawyers' Fees Act. The fee stated there must be multiplied by 1.3. If a court case is brought, the fee is increased again by a factor of 1.2.
How do I proceed against warnings?
If a warning is unjustified, you do not have to react to it. You can hire a lawyer who will take care of everything else and collect his fee from the other party. If the warning is justified, you should make a cease-and-desist declaration and an undertaking. If the amount in dispute is too high, you can sign the cease-and-desist declaration and the declaration of commitment and reject the opponent's cost note. If you make a counterproposal, the warning letter usually agrees to it. In trademark law, amounts in dispute of EUR 50,000 are quite common. In competition law, the amount in dispute is usually half. Incorrect revocation instructions have an object value of 900 Euro. In the commercial sector and copyright law, sums of 5,000 euros are common. Anyone who wants to protect himself from warnings should hire a lawyer. This lawyer can Online shops and websites on their Legal certainty check. If the court issues a temporary injunction, the person being warned can issue a protective brief in which he or she describes his or her view of the matter. A protective brief can prevent a court injunction and protect the rights of the person being warned.
