At a glance
- Urgency presumed – usually about one month from knowledge
- Serve an ex parte order within one month
- Defence: protective letter, objection, appeal
The preliminary injunction (einstweilige Verfügung) is the central tool of German unfair competition litigation. It can deliver a court order within days, often without a hearing.
Requirements
- Claim: an injunctive claim under the UWG
- Urgency: presumed under Section 12(1) UWG, but rebutted if the applicant waited too long after gaining knowledge – courts typically draw the line at around one month, some at six weeks or two months
- Prima facie evidence: documents, screenshots and affidavits suffice
Procedure
Application to the competent Regional Court; decision by order without hearing or by judgment after a hearing. The Federal Constitutional Court requires that the opponent generally had an opportunity to comment beforehand, e.g. through a matching warning letter. The applicant must serve an ex parte order within one month (Section 929(2) ZPO). Breaches are sanctioned with fines of up to EUR 250,000 (Section 890 ZPO).
Defence
- protective letter in the central register
- objection leading to an oral hearing
- objection limited to costs if the claim is acknowledged but there was no prior warning
- appeal to the Higher Regional Court (no further appeal in interim proceedings)
- order to bring main action (Section 926 ZPO) or revocation due to changed circumstances (Section 927 ZPO)
- damages under Section 945 ZPO if the order was unjustified from the outset
Final settlement
An injunction is provisional. With a final settlement letter, the creditor asks the debtor to accept the order as final. Otherwise main proceedings follow.
