Warning of a trademark: trademark infringement - first aid

You have received a warning for a trademark infringement? A warning from a brand is often used to represent Abgemahnten Once a shock, especially because of the high legal fees, yet because of the high value dispute, be due to a dispute value of 50,000 EUR, at 1,641.96 EUR.

Warning for trademark infringement: What to do?

The recommendation by Attorney Breuer:

1. Do not react in panic!
2. But you respond: Contact a specialist in trademark law lawyer who has often to do with warnings. Let a professional do it for you it's worth it. I am happy for our information meeting.
3. And above all: Sign the penalty clause declaration without prior consultation with a lawyer! A signed declaration of such a contract is valid and is committed to fully and irrevocably bedinungslos.

Warning in Trademark Law - What is a caution?

With a warning from the Abgemahnte out of court stating that a particular business behavior, typically selling products or offering a service, unauthorized use of a registered mark and thus constitutes a trademark violation. With the warning, the violator will be asked to refrain from trademark infringement. To ensure that in future it holds Abgemahnte, must - be given a penalty clause explanation - often within a very short period.

Content of a warning

• The warning should the facts that led to the trademark infringement, are described as accurately as possible, so much for the Abgemahnten is, what conduct he must avoid.
• The warning often contains a brief legal reasons why the behavior is a trademark violation.
• It follows the prompt that trademark infringing conduct to refrain from immediately issue a pre-formulated and-desist declaration.
• The warning letter threatening legal action on a regular basis, especially the adoption of a preliminary injunction to, if the attached declaration of will is not signed or not within the allowed time.
• The warning includes the invitation, also within a prescribed period, the warning required to be paid because of the legal fees of the injured.

Cost of a trademark warning

Many sufferers respond to a trademark warning due to high costs quickly by accusing the warning was an abuse of right and even had a brief e-mail is sufficient and you would set the violation.

This view is, unfortunately, in most cases is not correct. Although a warning may also be an abuse of rights, the experience shows that in most cases, the warning is fully justified in principle. About the details, however, can always argue. More on that later.

It should be noted also that the legislature has created with the warning for all those involved an opportunity to bring about a quick out of court settlement of a brand-injurious behavior, which ultimately causes less cost to the Abgemahnten, as if a trial should be conducted.

For comparison, a dispute underlying value of 50,000 EUR settle out of court after the Abmahnkosten RVG equal "costs" of about 1,641.96 EUR and its own legal fees.

When conducting a trial, in which the injured party to enforce the court injunction must, there may be a cost risk for the loser of court costs, attorney fees, as well as the foreign lawyer's own cost of 8,472.18 EUR.

With a warning can therefore avoid litigation, which in many cases simply cheaper than it is to take a chance on a lawsuit.

Who is allowed to admonish?

Periodically the brand owner a warning will say because of a trademark infringement. Because the registration of the mark which the owner the exclusive right to use the trademark for the goods protected and / or services to use.

Trademark infringement warning - What to consider?

Allowed a warning for a trademark infringement Do not ignore, as there is a risk that an injunction be issued against you. In the injunction proceedings, the court without a hearing, including, without listening to the arguments of Abgemahnten, often the same day to decide whether the trademark infringement which it is based. If this is the case, a decision was made, which is delivered by a bailiff. Regular means of adoption and the procedure for a preliminary injunction substantially higher costs for the Abgemahnten.

Likewise, you should not give injunctive statement rashly and without further examination by a specialist lawyer.

Tip: Save yourself from a warning to the call to the lawyer or the firm, which has warned you. This will not waive the requirements of the warning letter and if in doubt you can be carried away into a thoughtless remark, which can later be used against you.

Seek advice from a lawyer, whether the alleged trademark infringement is ever justified. A trademark infringement can be excluded, for example, if no action in trade exists (§ 14 para 2 Marks), a permissible use of the mark as a descriptive indication exists (§ 23 Marks), the rights to the mark are exhausted (§ 24 Trademark ) or trademark claims for lack of use of the mark are excluded (§ 25 Trademark Law).

Let the following points clarified by a lawyer:

• If the Abmahner entitled to warn the trademark infringement?
• Are you responsible for trademark infringement?
• If the cease and desist put too far?
• If the level of penalty appropriate?
• Is it compulsory to information and damages?
• If the amount of attorney's fees justified?
• If the warning very abusive?

Trademark infringement warning - How to respond properly:

The correct behavior of a trademark warning always depends on the specific case:

If the warning in principle entitled to a lawyer should be allowed to formulate a modified cease and desist. My goal for you: Do you undertake not more than necessary.

If the warning in principle entitled to a lawyer should be allowed to set the amount of the penalty. It is not advisable to remove the penalty to be completely out of the cease and desist, then there is a lack of Ersthaftigkeit the declaration. My goal for you: Do not be an excessive penalty set.

If the warning right in principle, but the alleged Abmahnkosten appear excessive, should cease and desist letter be issued in due time, the payment of Abmahnkosten but are denied. Thus, although there is a risk that the Abmahner suing the attorney fees in this case, the cost risk is much lower than in a preliminary injunction proceedings, because the amount in dispute is only in the amount of Abmahnkosten (eg 1600 EUR), which is much smaller than the original dispute value (50,000 EUR). My goal for you: harm reduction by reducing the legal costs and possible damages.

If the warning is not justified, for example because there is no trademark infringement has occurred or the warning is quite unfair, you may be on the next steps and discuss the risks of a lawyer. Depending on the case should be considered whether it is limited to the defense against a possible lawsuit or actively going on with a negative declaratory action against the proprietor and asked if a cancellation of the trademark from the trademark register of the German Patent and Trademark Office. Negotiations for a caution often make amazingly different, where the owner is threatened with his brand of extinction.