At a glance
- Filed in the central register
- Valid for all civil courts for six months
- Prevents an order without a hearing
A protective letter (Schutzschrift) is a pre-emptive brief against an expected application for a preliminary injunction. It is filed electronically with the central protective letter register, accessible to all German civil courts (Section 945a ZPO). If an application is filed, the court must take it into account.
When it makes sense
After rejecting or modifying a warning letter, when a competitor has announced court action, before campaign launches or trade fairs, or when the opponent is known to apply without prior warning.
What it can achieve
Rejection of the application, an oral hearing instead of an ex parte order, arguments on lack of urgency, reference to a declaration already given to a third party, or abuse by the applicant. It is stored for six months.
Case examples
An exhibitor learns that a rival wants to block its stand over alleged imitation. We file a protective letter in the central register; the court does not grant the injunction without a hearing.
Besides rejecting the warning, we file a protective letter so the opponent cannot obtain an ex parte injunction.
A competitor obtains an injunction first and sends a warning letter afterwards just to generate fees. According to the BGH, such costs are not recoverable.
The “drawer injunction”
A drawer injunction is obtained before the warning letter and served only after the deadline expires. If the declaration is given, the order stays “in the drawer”; the warning costs are then not recoverable. For recipients, this means even a seemingly ordinary warning letter may already be backed by a court order.
