By Arno Lampmann · Published
MagazinneuA prospective customer abandons an online checkout in December. From then on, he receives a newsletter every week that he never asked for.
When his company obtains a preliminary injunction against the sender, the sender defends itself with objections about letterboxes, binding strips and black-and-white copies, and with tracking data supposed to prove that the recipient had known about the emails all along.
The Regional Court of Kassel has now upheld the injunction. What the judgment says about newsletters sent without consent, and about defending a case with smoke screens.
The Regional Court of Kassel (Landgericht Kassel) has upheld, by judgment following an oral hearing on 12 October 2026, a preliminary injunction issued at our request against a competitor of our client (case no. 10 O 732/26). The competitor remains prohibited from advertising by email in the course of trade without the recipient’s prior consent. The judgment is not yet final.
We have reported on this practice before, most recently on abandoned-cart emails stopped by the Regional Court of Cologne (in German). What makes the Kassel judgment worth reading is the defence that preceded it: the chamber had to spend several pages on the question of which letterbox a postal worker had used, and only then turned to whether the newsletter should have been sent at all.
Newsletter without consent: an abandoned purchase is not a sign-up
Anyone who starts and abandons an order in an online shop has not thereby consented to advertising emails. A retailer who stores the address and sends newsletters infringes Section 7(2) no. 2 of the German Act against Unfair Competition (UWG), without any balancing of interests in the individual case. The burden of showing consent lies with the sender.
The facts were quickly told. In April 2026, a person connected with our client received a newsletter from the competitor at his business email address, advertising “weekend deals”. He had never signed up. The competitor itself conceded in the proceedings that the address came from an order abandoned in December 2025 and had received the newsletter every week since then. We sent a warning letter, the other side rejected the claims, and the chamber issued the injunction in June after hearing the respondent.
The exception for existing customers under Section 7(3) UWG did not help the sender, since someone who has bought nothing is not a customer. We discussed the limits of that exception in connection with the CJEU ruling on advertising to existing customers (in German). In the opposition proceedings, the other side relied on a technical sign-up and confirmation history and on the Federal Court of Justice’s case law on double opt-in. In the chamber’s view, it nonetheless failed to set out any facts from which consent could follow. Nor did the argument that events were hard to reconstruct after so long succeed: the company should have organised itself around the known statutory requirements.
How much service does a preliminary injunction need?
An injunction issued by order must be enforced within one month, by service on the opposing party’s counsel if counsel has been appointed (Sections 936, 929(2) and 172 of the German Code of Civil Procedure (ZPO)). According to the Kassel judgment, formal irregularities do not render enforcement ineffective as long as the content and scope of the prohibition can be identified from the document served. Many defects are also cured under Section 189 ZPO once the document actually reaches the addressee.
The other side disagreed and put forward a whole bundle of objections. The postal worker had placed the injunction not in the office letterbox of its lawyer but in the letterbox of his private flat in the same building, although the office had been staffed from 8 a.m. to 8 p.m. that day. The documents had only been held together by a binding strip, the images were black and white instead of in colour, the exhibits bore file names, and page numbers were missing. In short, it was impossible to know what had actually been served.
The chamber examined each of these points and accepted none:
- Letterbox: Section 178(1) ZPO places residence and business premises on an equal footing. The statute gives no priority to the law office, and the non-binding rule in Section 20 of the bailiffs’ service instructions (GVGA) does not apply to postal workers anyway. Any defect was cured in any event, as the lawyer lives there and had received the document.
- Certification and binding: the certification note appeared on every page, and the exhibits were joined by a binding strip that could only be removed by force. That was sufficient.
- Colour: the prohibition concerns email advertising without consent. How the email was designed is irrelevant to that. Incidentally, the copy issued by the court itself was in black and white.
- Missing pages: even if individual pages of the application had been missing, this did no harm, because the injunction had not made their service a condition of validity and the operative part, including the reproduced email, had been served in full.
One may regret how much space these questions take up in the judgment. The chamber, of course, had little choice but to deal with every objection raised. Those enforcing injunctions need not be unsettled by this, but they should work carefully: service goes to the lawyer named in the heading of the order. Service on the party itself is ineffective in such a case, as the judgment confirms once again.
Tracking data as an urgency argument: why an opened newsletter proves nothing
A sender cannot rebut the presumption of urgency under Section 12(1) UWG with its own tracking logs that are meant to show that the recipient had opened earlier emails. What counts is only the knowledge of those persons in the applicant’s business who are responsible for identifying and pursuing competition law infringements. Someone who does not consciously notice advertising in their inbox has no knowledge of it within the meaning of the provision.
The other side submitted an event log from its shop system. According to the log, the recipient had opened a newsletter at the end of December 2025, clicked a link, logged into the shop, viewed a product and placed it in the basket. Anyone handling newsletters in this way, the argument went, knew about them, and anyone who had known about them for months was in no hurry to apply for an injunction. The very log meant to disprove urgency, of course, mainly documents how closely the sender monitors the behaviour of a recipient who had never consented to anything.
The chamber was not persuaded. The recipient had declared in lieu of oath that, before the email of 11 April 2026, he had not consciously noticed, opened or read any advertising email from the competitor. Nothing had been put forward to suggest grossly negligent ignorance on the part of a person whose knowledge would be attributable. One month lay between the email complained of and the receipt of the application, so the presumption under Section 12(1) UWG remained intact. In its original order, the chamber had already held, for the purposes of limitation, that an earlier recording of the address in the sender’s system does not amount to knowledge.
We have seen this pattern before. We reported on a similar attempt to use tracking data to construct a duty to monitor the market (in German). That such profiles are themselves open to challenge under data protection law is shown by another case before the Regional Court of Cologne, in which the court prohibited user profiles built from website and email data (in German).
The court where the email arrives also has jurisdiction
In the case of email advertising sent to a specific recipient, the injured party may also sue or apply for an injunction where the email is received. According to the Regional Court of Kassel, the restriction on forum shopping for online infringements in Section 14(2) sentence 3 UWG does not apply to individually sent advertising emails.
In this case, the place of receipt was the registered office of the company whose business address had been written to. The chamber thereby follows the Higher Regional Court of Düsseldorf, whose judgment on jurisdiction for email advertising (in German) we reported on in 2022. The chamber also rejected the allegation of abusive conduct under Section 8c UWG, since nothing had been put forward in support of the sweeping claim that the infringement had been provoked.
Our client did not succeed, however, with the application to hold the two managing directors personally liable. The chamber regarded newsletter advertising as a task that may be left to employees, and the Higher Regional Court of Frankfurt am Main confirmed this. We consider that separation unrealistic and set out our view in connection with a comparable decision of the Higher Regional Court of Cologne on managing director liability (in German).
What businesses can take from the case
- An email address collected at checkout is not consent to advertising, not even after an abandoned purchase. Anyone sending newsletters should document every consent so that it can still be proven months later.
- Anyone receiving unwanted advertising emails from a competitor should preserve them in full, including headers, and act quickly. Here, one month passed between the email and the application, including a warning letter.
- Enforcement of an injunction issued by order must be addressed to the lawyer named in the heading, within one month, with a certification note on every page and firmly attached exhibits.
- If the sending continues despite the injunction, administrative fine proceedings remain. In the Kassel case, the newsletters continued after service; three applications for administrative fines are still pending.
How sluggish such enforcement proceedings can be is something we described under the title urgent proceedings without urgency (in German). We will report on how things develop in Kassel.
Frequently asked questions about newsletters without consent
May an online shop send newsletters after an abandoned purchase?
No, not without express consent. Entering an email address during checkout is not consent to advertising, and the existing-customer exception requires an actual sale. The Regional Court of Kassel therefore prohibited a retailer from continuing.
Who has to prove consent to email advertising?
The sender. In summary proceedings it must set out and substantiate that the recipient consented. The fact that events are hard to reconstruct after months does not relieve it of that burden.
Can open and click data rebut the urgency of a preliminary injunction?
Not in the Kassel case. What matters is the knowledge of those responsible for pursuing competition law infringements at the applicant. A sworn declaration that earlier advertising emails had not been consciously noticed was sufficient for the court.
Is an injunction ineffective if it was put in the wrong letterbox?
Not necessarily. According to the Regional Court of Kassel, residence and business premises rank equally for substitute service, and if the lawyer actually received the document, Section 189 ZPO cures any defect.
Where can a business take action against a competitor’s unlawful email advertising?
Besides the court at the sender’s seat, also at the place of receipt. According to the Regional Court of Kassel and the Higher Regional Court of Düsseldorf, the restriction on forum shopping for online infringements does not apply to individually sent advertising emails.
Is a competitor sending you advertising emails you never asked for?
We assess whether a warning letter or an injunction application is worthwhile and keep an eye on deadlines and enforcement from the outset. You will usually receive an initial assessment within 24 hours.
Further information
- Stopping unlawful advertising: spam, cold calls and fax (in German)
- Protection against warning letters and preliminary injunctions (in German)
- Our fields of activity (in German)
- Our successes (in German)
Bild: LHR