Both parties sell headphones and earphones and are therefore competitors. The defendant had failed to affix the CE marking required by the Electrical and Electronic Equipment Act to its headphones and earphones. The plaintiff warned the defendant about this violation. The defendant issued a cease-and-desist declaration subject to penalty. The plaintiff accepted this cease-and-desist declaration, so that thereby a corresponding cease-and-desist agreement had come off.
After conclusion of the cease and desist agreement, the plaintiff acquired seven headphones and earphones from the defendant, on which the CE marking was not present. With its complaint the plaintiff demanded in particular the payment of contractual penalties for seven offences against the omission contract at a value of in each case 5100,00 , thus altogether 35,700,00 ? During the legal dispute, the defendant extraordinarily terminated the cease and desist agreement for good cause pursuant to § 314 (1) sentence 1 BGB on the grounds that the warning letter issued by the plaintiff was an abuse of rights.
The Federal Court of Justice ruled in favour of the defendant. The Federal Court of Justice was also of the opinion that the warning letter was an abuse of rights and justified termination of the cease and desist agreement for good cause.
An abusive conduct in the sense of § 8 (4) UWG is present if the dominant motive of the creditor in asserting the injunction claim is abusive such as the interest in obtaining fees or to burden the opponent with the highest possible litigation costs or to generally damage him. An indication for abusive prosecution may arise, inter alia, from the fact that the reminder activity is not in a reasonable economic relationship to the commercial activity of the person issuing the reminder. Furthermore, a collusive cooperation between the creditor of the injunction claim and his lawyer can constitute an abusive behaviour, if, for example, the lawyer indemnify his client from costs in the internal relationship and collects the payments of the respective opponent for himself.
In the present case, the plaintiff had already had his lawyer issue a series of warning letters. Furthermore, according to the court’s findings, the plaintiff was in considerable economic difficulties at the time of the warning letters. He had depts in the six-figure range. In view of his poor financial circumstances, the plaintiff was ultimately not in a position to finance the lawsuits he was conducting. This led to the conclusion that the collusive cooperation between the plaintiff and his attorney described above would probably be present here. In any case, the plaintiff had obviously not substantiated that this assumption was incorrect.
These circumstances were sufficient for the Federal Court of Justice to assume that the dominant motive for asserting the injunction claim had been “irrelevant”. Therefore, there had been an abusive warning letter. If, however, a warning notice is an abuse of rights within the meaning of § 8 (4) UWG, a cease and desist agreement that was concluded on the basis of such a warning notice can be terminated without notice for good cause.
By a notice of termination a contract is terminated for the future. The defendant had only declared the extraordinary termination of the cease and desist agreement after the plaintiff had asserted the seven infringements of the cease and desist agreement complained of. The violations of the cease and desist agreement therefore occurred at a time when the cease and desist agreement still existed. Consequently, there would in itself have been a legal basis (namely the cease and desist agreement) for the enforcement of the contractual penalties invoked. The Federal Court of Justice, however, stated that the assertion of contractual penalties on the basis of an injunction contract which had come into existence as a result of a warning letter in violation of the law was also in violation of the law and would violate the principles of good faith pursuant to § 242 BGB. The Federal Court of Justice therefore dismissed the action, in particular with regard to the contractual penalties demanded.
In this connection, the Federal Court of Justice also had to clarify whether the defendant had declared the termination for good cause”within a reasonable period” within the meaning of § 314 (3). If a termination for good cause is not declared within a reasonable period after becoming aware of the reason for termination, the termination is ineffective. In the present case, the Federal Court of Justice based its decision on the fact that the defendant had gained knowledge of the disastrous economic circumstances of the plaintiff at the time of the warning letter on the basis of an asset report submitted by the plaintiff on 8 October 2015. The termination pronounced by the defendant in a letter dated 1 December 2015 had still been declared within a “reasonable period”.
