{"id":67710,"date":"2018-09-06T07:58:08","date_gmt":"2018-09-06T05:58:08","guid":{"rendered":"https:\/\/www.lhr-law.de\/?p=67710"},"modified":"2024-10-21T12:46:03","modified_gmt":"2024-10-21T10:46:03","slug":"if-the-bailiff-does-not-serve-the-second-page-of-the-application-on-the-difficulties-of-interim-injunction-proceedings-part-2","status":"publish","type":"post","link":"https:\/\/www.lhr-law.de\/en\/magazine-en\/competition-law-antitrust-law\/if-the-bailiff-does-not-serve-the-second-page-of-the-application-on-the-difficulties-of-interim-injunction-proceedings-part-2\/","title":{"rendered":"If the bailiff does not serve the second page of the application – On the difficulties of interim injunction proceedings, Part 2"},"content":{"rendered":"
\"Difficulties
\u00a9 Thomas S\u00f6llner – fotolia.com<\/figcaption><\/figure>\n

The Berlin Regional Court has recently rejected an application for a temporary injunction (LG Berlin, Urteil v. 7.8.2018, Az. 103 O 25\/18<\/a>, nicht rechtskr\u00e4ftig). <\/em><\/p>\n

The decision is interesting. However, not with regard to substantive legal issues, but to the procedural peculiarities of the preliminary injunction proceedings – in this case the enforcement requirement, which the applicant failed to meet due to an error by the bailiff.<\/i><\/p>\n

Asserting claims for injunctive relief is not easy<\/h2>\n

The assertion of claims for injunctive relief, as described in the Trademark law<\/a>, Competition law<\/a>, Copyright<\/a> and Personal rights<\/a>\u00a0are mainly the subject of disputes is difficult.<\/p>\n

Firstly, there is the drafting of the application. In industrial property law, the application for injunctive relief is the core of the procedural approach and is the source of numerous errors in practice. Incorrect wording can – as in general civil law – lead to the court seized rejecting the application in the event of a Excessive demand<\/strong> – with the corresponding cost consequences – partially rejects the claim or, if it falls short of the statutory claim too little<\/strong> is awarded.<\/p>\n

Furthermore, in the case of an application for injunctive relief, there is also a great risk that, due to formulation errors, it completely fails to address the creditor’s claim or justified request and is therefore considered a unfounded<\/strong> must be rejected. After all, in practice it is not uncommon for applications to be rejected simply because they are based on Indeterminacy<\/strong> are inadmissible.<\/p>\n

The preliminary injunction procedure is complicated<\/h2>\n

Furthermore, a large proportion of disputes in the field of intellectual property are not settled in court proceedings, but in the preliminary injunction proceedings<\/strong> and finally settled in the so-called final proceedings. In view of the short limitation and urgency periods that must always be observed and numerous special provisions, the enforcement of injunctive relief claims in summary proceedings often fails for formal reasons alone, even if the legal situation is clear.<\/p>\n

An elementary prerequisite for a temporary injunction is the Urgency<\/strong> of the matter, the range of which is between 1 and 3 months depending on the court seized. There is a rebuttable presumption in favor of the creditor. However, if the debtor can show that the creditor knew or should have known of the infringement earlier, the application for an injunction must be rejected regardless of the substantive legal situation.<\/p>\n

Interim injunction proceedings are not for beginners. Even the most beautiful substantive claim can quickly crumble costly due to small mistakes. In the following four articles, we have already highlighted some of the problems in actual cases from our practice:<\/p>\n