Abmahnung

A warning ( colloquially warning letter ) is the formal request from a person to another person to refrain from a particular act or behavior. In principle, warnings used for each area of civil injunctive relief and in every mutual contractual relationship. Of special importance is the warning however in intellectual property law, in particular competition law, copyright law and labor law.

In competition law, 90 to 95 % of all violations will be handled in warning procedures. Originally the warning was understood as a non-contractual obligation, partly it was also regarded as the usual legal instrument. Meanwhile, the warning, as in § 12 UWG, also regulated by law. In Austria, one speaks of a failure prompt. In Switzerland, the warning particularly in labor, in construction law and intellectual property law is known, but not generally regulated by law. A marked difference in the warning in Germany and Austria is that the legal fees of the warning out of court can not be passed on to the Abgemahnt. Thus in Switzerland has to bear the costs of a warning of Abmahnende.

The warning is 2 BGB expressly provided as a prerequisite for termination of a continuing obligation for good cause or for the resignation of a mutual contract in Germany according to § 314 para.

• 2.1 abuse
• 2.2 Court of strength

• 5.1 Content
• 5.2 Reasons warning
• 5.3 contradiction
• 5.4 Personnel File
• 5.5 Objectives and consequences

Intellectual Property and Copyright

Function

The warning has the function of resolving disputes in a direct and cost-effective way without judicial intervention. It is necessary to mitigate the risk from the perspective of the victim, that the opposing side of a court case acknowledging their duty not to act immediately if it has otherwise been no occasion for the operation of the procedure ( see § 93 ZPO). In such a case, the injured party has to bear the costs incurred up to that process itself.

Formal requirements

The warning in intellectual property and copyright must be a description of the acts charged, contain an associated indication of an infringement, an invitation to act within a reasonable time and the threat of legal action. Typically, the warning is accompanied by a pre-formulated cease and desist letter. Until recently, it was disputed whether the warning made ​​by a legal representative, a power of attorney must be attached so that it is effective. As far as the warning - as in almost all cases - is designed as an offer to conclude a contract omission, the Federal Court decided this question in the meantime. Thus, in these cases there is no need accompanying proxy for the effectiveness of warning, since the provision of § 174 BGB does not apply to these cases. Of special importance is the warning in the repression of unfair competition.

2009 confirmed the Regional Court of Hamburg the validity of a warning by e -mail, even if the email was deleted by a spam filter.

Reaction

A warning can be met with varied response options:

• The injured party may demand a penalty clause declaration so as to eliminate the risk of repetition. Regularly a warning is already at a pre-formulated statement. In re- making of the act, the injured party may immediately demand the contractual penalty.
• The delivery of the unchanged omission explanation is, however, only makes sense if the Abgemahnt facts is undisputed that omission commitment should be recognized as such, and also just in the boilerplate scope and amount of the proposed penalty appropriate.
• The authorized Abgemahnt has to bear the costs of the warning. Add the required amount but only insofar as the specified object values ​​and on this basis the calculation of attorneys' fees are applicable.
• The submission of a modified cease and desist letter and the payment of expenses on the basis of a lower amount in dispute (object value ) recommend, for example, if the budget established by the opposing side object values ​​are unrealistically high. Disallowed costs must sue the Abmahnende. It should also be checked if the wording of the declaration of potentially goes beyond the statutory obligation. This caution: If the Abgemahnt only ready for a cease and desist letter, which lags behind its legal obligations, the Abmahnende can operate immediately and without cost risk a judicial process.

• Those who are not quite sure can just do nothing and let it come to legal proceedings. This is especially dangerous when about an injunction would interfere with the company's activities seriously. This would indeed be strictly adhered to and could only by a process that usually after several weeks, be eliminated.
• With the negative declaratory action 's claims can be defended by leaving notice that the injunction of Abmahnenden not exist.
• Alternatively, a counter warning be placed in which the omission of additional warnings are required. Optionally, claims for damages can be claimed.

To meet these ( and other ) decisions requires experience and in-depth legal knowledge. Legal layman is usually recommended to consult a lawyer or other legal services in this area to authorized person.

Costs

Usual rules

Since the warning is made usually from a lawyer on behalf of the injured person, caused by the warning even legal fees. The exact costs of legal activity are calculated here by the Lawyers' Remuneration Act ( RVG). If the warning justified or accepted the Abgemahnt they readily and are more formal requirements of § 97a para 2 of the Copyright Act adhered to, the injured party may demand compensation for the legal fees. This arises for copyright stuff about from § 97a paragraph 3 sentence 2 of the Copyright Act, for warnings for unfair business acts under § 12 para 1 sentence 2 of the UWG. The issue of whether a claim for reimbursement from the reimbursement of expenses of the agency without authority, § 683 sentence 1, § 670 BGB, has therefore not apply.

In a warning letter in copyright, trademark and competition law cases they are determined by the size of the claim, to a value factor for the level of activity. The fees amount in dispute is usually stated in the commercial sector, with amounts from 10,000 euros. With an average trademark infringement dispute the value, for example, is regularly 50,000 euros. The fee refund for the abmahnenden lawyer can then be of the order of considerably more than a thousand euros. According to the Supreme Court they are basically to report even if a company has its own legal department and appointed external lawyers with the warning.

In patent, utility model, trademark, Semiconductor Protection Act and Plant Variety Protection disputes also covers the cost of a patent attorney participating in the same amount to be reimbursed. They are also to report when it is repeatedly sent letters.

Besides the costs of the intervention of the lawyer is usually compensation for the injured law. In many cases, the intellectual property that is calculated in the form of the license analogy.

Limit the copyright for not already Abgemahnt consumer

The high monetary claims in connection with warnings call repeatedly critics to the curb copyright infringement in an effort rather saw the search of many attorneys for fast money. To prevent this danger, the height is restricted since 2008. Which came into force on October 9th, 2013 § 97aVorlage: § / Maintenance / buzer Section 3 of the Copyright Act provides that ( right ) Abgemahnt natural persons who are " not subject-matter for their commercial or independent professional activity " and use " not been due to a claim of the Abmahnenden bound by contract, on the basis of a final court decision or an injunction to cease " are attorneys' fees may be charged only to the amount of the fees for 1000 euro value of the item. This amount is independent of any further claims for damages of the injured. The scheme is limited to the copyright and makes no statement as to the level at which the lawyer has a claim against the mandatierenden him injured.

Special features on the Internet

The notice on the homepage, in the case of legal concerns (for example, the Legal notice, or for trademark infringements ) to send an informal e -mail or to call instead of sending a formal written warning, will not be upheld in court, because the e-mail or the call are already warnings for which an effort is incurred. Finally, it's not the goal of any such reference, to get no warning, but not to be burdened with the cost of a lawyer's warning. However, these costs arise from the examination of the facts and the law and less by the warning letter created.

It is settled law, however, can only be a penalty clause statement - as it accompanies pre-formulated usually a warning - eliminate the risk of repetition and so avoid a trial. Although the injured party may also immediately apply for an injunction, which can bring an enforceable without the knowledge of the infringer him even. However, without prior warning he has to bear the costs according to § 93 ZPO, if the infringer acknowledges his duty not to act immediately, provided that was to be expected that due to a warning letter, a cease and desist letter will given.

If, however, the breach did not refer to the warning out - usually so by submitting a repetition danger exclusionary imitator - then the Abgemahnt reason for bringing the action has given and has to pay the court costs, even if he recognizes in the process immediately.

Abuse

In recent years, a sharp increase in warnings is in particular due to copyright infringement. Focuses on the use of copyrighted material on websites - eg city map details or images - and the provision of access in file sharing through file sharing.

The Association of the German Internet Industry has informed in a press release dated 31 May 2011 that in German internet providers around 300,000 monthly address information will be provided via connector holder on the basis of § 101, paragraph 9, 2 of the Copyright Act. The Association to help and support against the Abmahnwahn eV has reported a total of approximately 600,000 warnings worth about 500 million euros in its annual statistics for Great Abmahnwesen 2010. To date, 6 percent, or about 4.3 million of Internet users were warned at least once in Germany.

For each case, seen the warning is a legitimate and now in § 97a para 1 sentence 1 of the Copyright Act provided a means of extra-judicial clarification. However, the practice shows that it is no longer content to the elimination of copyright infringement in the vast majority of cases warnings. In the foreground rather are to be refunded in accordance with § 97a para 1 sentence 2 of the Copyright Act costs of prosecution, particularly the compensation claims of the drawn Lawyers and royalties, which could not obtain the right holder on the regular market.

From a legal perspective fees are mandates for warnings very lucrative for lawyers. This is primarily due the jurisdiction of the courts seised, the dispute reach high values ​​even for the simplest rights violations, this partly even explicitly as a sanction against the infringer. It is now spoken in this area of a regular Abmahnindustrie. This finding is supported by various empirical evidence. Warning letters are often stereotyped -like form letters that can miss a discussion and presentation of the specific individual case and are characterized by significant threats in terms of costs. Finally, frequently found a settlement offer with the "actual" cost claims are significantly reduced for immediate payment.

In the area of competition law similar developments can be observed.

The Supreme Court has ( summer of our lives I ZR 121/ 08), by judgment of 12 May 2010 that a private port owner, its Wi-Fi connection is used by a third party abusive, although according to the legal principles of the so-called nuisance liability for injunctive relief and liable for reimbursement of Abmahnkosten a liability as perpetrators or participants of copyright infringement against it does not come into consideration. Although Accordingly, the cost of a warning from the interferer to report, but not further damages such as lost royalties.

The Supreme Court has decided in its judgment of 15 November 2012 ( I ZR 74/12 ) that parents generally are not liable for the illegal file sharing of a 13 - year-old child when she had instructed the child on the prohibition of unlawful participation in Internet file sharing and no had reason to believe that their child acts contrary to this prohibition.

The law against dubious business practices by October 1, 2013 regulates, inter alia, costs of competition warnings, written warnings after the injunction law and copyright warnings again, to protect consumers from excessive Abmahngebühren. These costs of attorney letter for the first warning to consumers will henceforth regularly capped until the fee for 1000 euro value of the item. In addition, the Abgemahnt counterclaim for reimbursement of expenses for legal defense if the warning is unwarranted or ineffective. Thus, a warning is effective, must be clearly stated, inter alia, " to what extent the proposed cease and desist on the Abgemahnt infringement beyond " (§ 97aVorlage: § / Maintenance / buzer Section 2 No. 4 Copyright Act). The law is intended to prevent build a business model on firms covered mass warnings in Bagatellverstößen of copyright.

Court of strength

From a technical perspective TCP connections from outsiders no two- point connections to an upload - download can be located and analyzed in the context of ordinary Internet.

The firms or authorized by it, the so-called anti-piracy companies can only analyze the data traffic by acting themselves with common P2P software as spoilers. At least it was here by the end of 2012, no court-proof, used by regular authorities and accepted software that you know works differently, or any credible replacement for the Federal Trojan still not well established.

The Anti -Piracy espionage therefore more likely corresponds to an illegitimate undercover operation in which a dealer is trying to lead by itself occurs as an alleged major dealer. This form of investigative work, which also corresponds to a bugging, may legally be done only with police means a court order for the necessary, but not via private or with personalized and unknown software foreign company that was not licensed by the authorities.

The Cologne Court of Appeals pointed out in this context, from a case in court and asked for a to be documented ongoing quality assurance and periodic monitoring of software by independent experts. Only the statement of an investigation company, their software work reliably and in court, is not a criterion that can be traced.

The firms therefore move on with their claim also itself, independent of the action of the suspected connection owner, in a legal gray zone that can be answered with a counter-claim, since there is no software that can analyze the downloads or uploads, no not itself a wooing provider to be the files or a part of the exchange network.

The rejection of most lawsuits in Germany does not take place in court against this background, however, if the accused has a debt or part of debt already admitted.

Attorneys recommend to scrutinize the investigation results of alleged copyright infringement critical.

In the media

A case made ​​in 2006 For attention, in which a mother was cited for these worn clothes had sold their children. The plaintiff, a law firm in Berlin, accused the woman to have traded commercially, and sued her after she had refused to pay the Abmahngebühr. The defendant was sentenced to pay legal fees and court costs in the amount of several thousand euros. Since there are no clear rules as to when a seller is private or commercial, the issue remains a gray area.

Since November 2013, the legality of the judicial strength was currently playing, presumably related to the warning of several tens of thousands of users who infringing films are viewed through the portal RedTube. The court in obtaining the release of the postal addresses to the respective IP addresses, and third, the subject of warnings first is the method by which the IP addresses of users was determined, secondly controversial.

Tenancies of housing

Because of the peculiarities in the tenancy of housing, where the right of termination of the landlord to specific, restrictive conditions ( rent control ) is attached, the warning has a special meaning. It contains in addition to the solicitation of an act or omission whose contempt shall include a breach of contract, a threat of dismissal in case of refusal. However, it is here - denied the tenant to request a declaratory action against such a warning - according to case law. Declaratory relief should be permitted only to the extent they relate to the existence or non-existence of a legal relationship.

• An alleged infringement involves only one element for the effectiveness of termination.
• The right to notice, however, does not constitute independent of the existence of the tenancy legal relationship
• However, a warning is not without legal force and can justify dismissal without notice if the tenant does not respond to the warning.

According to § § 543, Section 1, § 569 paragraph 2 BGB, either Party may terminate the tenancy for cause. An important reason is, in this connection, if the terminating party a continuation of the lease is not reasonable in all the circumstances of the individual case and weighing the interests of both parties until the expiry of the rental period. One important reason is especially present when the home is through a party is permanently disrupted.

Labour

The warning is in labor, the complaint of the employer over the employee specifically alleged breaches of duty in the employment relationship. It must be based on specific facts and make it clear that in case of recurrence threatens a behavioral termination of employment. The warning is not bound to any particular form, but is written in written form and must be signed by the disciplinary superior, but not by the workers concerned.

Content

Warnings include notice, reprimand, warning, proof backup and documentation functions.

• Note function Rügefunktion: The alleged misconduct must be explained to the employee in a sufficiently clear manner ascertainable. This requires an exact description of the specified load to breaches of duty and their comparison with the employment contract provided ideal state.
• Warning function: it must contain the information that is at risk in case of repetition of the content and existence of the employment relationship and can be expected to verhaltungsbedingten termination by the employer. In order to fulfill its function adequately warning, the warning must be clearly formulated. According to a ruling by the state labor court Rhineland-Palatinate employers need a last warning before discipline, including termination, therefore, " make a particularly impressive to make the employees clear that further such breaches of duty will now lead to discipline, including termination ."
• Proof backup and documentation function: If there is litigation, the written warning is written to the Labour Court as evidence. With the addition of the warning to the personnel file of the employee misconduct is documented for the future.

Warning reasons

The warning reasons arising from the work habits of the employee.

• Poor performance: This includes demonstrable errors or defects in the work performed, responsibility for supplied Committee, non-compliance with statutory or operational rules at work.
• Loafing: If the employee works more slowly than he can proven to work, or temporal / factual sequences in any procedures or slow to comply.
• Tardiness: This involves the repeated non- compliance with labor onset, break rules or end of work. Also, lack of sick days and late or absent submission of disability certificates are abmahnfähig.
• Transfers: Operating written or verbal work instructions must be followed, even if they are considered in each individual case as not useful. However, the behavior required of the employee transfers must also be due to the employment contract.
• Violation of applicable criminal law: On the petty theft of items from the employer or the employer's products, the employer may stop responding with an immediate termination, but must admonish the " Emmely rating " the BAG in June 2010, according to. The application requires a petty theft and a long trouble-free working relationship. Then it is reasonable to expect the employer to rely on the less restrictive means of warning. Only for very serious offenses, immediate termination without prior warning is possible because the worker should know in such a case from the outset that the employer will not tolerate such misbehavior.

Contradiction

The employer bears the burden of pleading and proof the privilege of a warning. Should the employees of the warning, the employer 2 WCA personal file it must reply in accordance with § 83 para take, but need not respond to this. Are no legal formalities for a reply. According to § 84 WCA period the employee has a right of appeal available. The contradiction of the worker is worth it if the warning does not contain a sufficient reason and just general allegations include, is not understandable and not provable. If the employee from a wrongly granted warning and the employer is not willing to redeem, he must sue before the labor court in this case his employer.

Personnel file

Warnings are documents relating to the employment relationship and therefore come in the personnel file. Wrongly issued warnings a claim by the employees loose on removal from the personnel file from when about either its contents are indeterminate, contains false statements of fact, based on an incorrect legal assessment of the conduct of the employee or violated the principle of proportionality, and even if even with a warning issued to law no legitimate interest of the employer longer exists on their whereabouts in the personnel file. Workers have a right to demand that a warning is removed from her personnel file, if they have acted uprightly in a certain period of time. However, the employer may continue to have a vested interest in the continued storage of a lawful warning, if he had to admonish again in case of recurrence, ie when he could no longer rely on the warning a behavioral termination. To this end, the Federal Labour Court (BAG ) has decided in July 2012 that the employee may only demand the removal of members rightly warning from his personnel file when the conduct complained to the employment relationship is " in all respects meaningless " become. That is not automatically already be the case if the employer would have to issue a further warning for the passage of time in case of recurrence, because the original warning had lost its warning function. Following this ruling, it must be allowed to the employer also legitimate warnings kept for a much longer time than just for two or three years. The BAG lies down in the retention period for warnings not fixed, but makes the period of the severity of a breach of duty in a particular case depends. The heavier weigh a breach of duty, the longer it could affect the evaluation of leadership, performance and abilities, and possibly for his trustworthiness is important. A framework, based on only slight negligence breach of regulations could significantly lose its importance to the employment relationship rather. " The employee may only demand the removal of members rightly warning from his personal file, if it can longer play a role in the implementation of the employment under any legal aspect. The alleged by the warning behavior must have become legally irrelevant to the employment relationship in every respect. "

Goals and consequences

Warnings are preparing a behavioral contract if present between the base and a warning repeated misconduct similar breaches of duty. It is for the employer to consider whether not a less restrictive measure, the employee pointed to a failure like using an exhortation, is more suitable. The latter has no labor relations. The judgment in the BAG in June 2010, is expected to lead to more warnings. The Federal Labor Court ruled namely, the cashier would need to be warned and would not - may be dismissed without notice - speak without warning.