Wenn die Werbung für ein Produkt lauterkeitsrechtlich verboten wurde, muss der Schuldner das Werbematerials entfernen lassen.
In its judgement of 27 September 2023, the Hagen Regional Court ruled that a debtor who has been prohibited from advertising a product under unfair competition law must arrange for the return or destruction of the advertising material issued.
Background
The decision concerned the breach of an obligation to cease and desist in connection with the advertising of a medicinal product.
The creditor sought the imposition of an administrative remedy against the debtor for breach of the obligation arising from an injunction. In a previous decision, the Higher Regional Court of Hamm had ordered the debtor to refrain from advertising the product or having it advertised in the course of trade under threat of coercive measures. The creditor now complained that the debtor had done nothing to recover the products in stock in pharmacies throughout Germany and thus to prevent the further dissemination of the advertising statements it was prohibited from making.
The debtor countered that it was only obliged to recall the products within its supply chains.
The decision
The court did not follow the debtor’s reasoning. As it stated, a party seeking injunctive relief must attempt to recover the products from its customers with vigour and seriousness and with reference to the infringing nature of the products. It is not sufficient to merely inform the third parties concerned of the content of the obligation to cease and desist and to call on them to behave accordingly. Rather, compliance with the orders must also be monitored and threatened sanctions must also be imposed in the event of violations in order to ensure that they are enforced. In the present case, the advertising information was still available unchanged on some websites, so that the Hagen Regional Court assumed an infringement. An administrative fine of EUR 200,000.00 was imposed on the debtor.
Conclusion / Outlook
In order to avoid serious financial consequences, compliance with an obligation to cease and desist requires proactive action and monitoring of the measures. This includes not only obligations to act with regard to products placed on the market, but also with regard to the associated advertising material. This also includes, for example, deletion from the cache of search engines on the Internet.