At a glance
- Limit to the specific form of infringement
- Penalty under the new Hamburg custom
- Usually binding indefinitely – draft carefully
A cease-and-desist declaration with a penalty clause (strafbewehrte Unterlassungserklärung) removes the risk of repetition and avoids court proceedings. It is a contract, usually without time limit. Its wording determines what the business may still do in future.
Elements
- Undertaking to cease: we generally recommend limiting it to the specific form of infringement (“as shown in the annex”).
- Penalty clause for each culpable breach.
- Costs, information and damages need not be part of the declaration and should be negotiated separately.
Amount of the penalty
- Fixed amount, typically four to low five figures depending on the value in dispute
- “New Hamburg custom”: the creditor determines the penalty in each case at its reasonable discretion, subject to court review – often the better solution for the debtor
- Section 13a UWG: criteria for appropriateness; for minor breaches by businesses with generally fewer than 100 employees, a cap of EUR 1,000; for first warnings concerning online information duties, no penalty may be required from such businesses
Breach, abuse, termination
The penalty becomes due for each culpable breach. It may not be enforceable if the underlying warning was abusive (BGH, 7 March 2024, I ZR 83/23). If the legal situation changes, the agreement may be terminated for good cause. In a merger, the risk of repetition does not automatically pass to the acquiring entity (BGH, 3 June 2026, I ZR 213/25).
Case examples
A shop undertook not to advertise “test winner” without a source; months later the same claim appears for another product. The contractual penalty is forfeited.
After signing, a retailer removes the claim from its shop but not from Google Shopping and older posts. The debtor must also act on third parties whose conduct benefits it.
The BGH held in 2026 that the risk of repetition does not automatically pass to the acquiring entity in a merger (3 June 2026, I ZR 213/25).
Common mistakes
Signing the opponent’s draft unchanged, undertaking to cease for all products, acknowledging costs and damages, removing content only from your own website.
A template is available under Templates.
