Cease and desist

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In civil law, the cease and desist declaration is a declaration in which a legal subject undertakes to refrain from an illegal act in question in the future .

General

If a legal entity ( natural person , corporation , other associations of persons , the state with the public administration ) violates certain absolute rights of others, the law grants the rightholders an injunction . Out of court can be the first by warning together with cease and desist assert that the holder of the interferer sends pre-formulated. This declaration is legally an offer that the interferer accepts by signature . The declaration has become a cease and desist contract.

Legal issues

The declaration of cease and desist signed by the disturber is an acknowledgment of guilt according to § 780 BGB . In the event of a breach of this, the interfering party can undertake to pay compensation for the punishable cease and desist declaration , which represents a contractual penalty in accordance with Section 339 of the German Civil Code. A contractual penalty is waived in the case of a simple declaration of omission. The warning is not absolutely necessary, so that the right holder can immediately submit an injunction to the court in the event of further violations . Anyone who could also assert an injunction claim is authorized to issue a warning. In doing so, however, he bears the legal risk that the troublemaker immediately recognizes his duty to cease and desist after filing a lawsuit, so that the right holder has to bear the costs of the proceedings ( Section 93 ZPO ). As part of a notarial certification , the cease and desist declaration can be combined with submission to immediate enforcement in accordance with Section 794 (1) No. 5 ZPO, so that in the event of a breach of the cease and desist declaration, the obligee holds an enforcement title . As a rule, the submission of a declaration of cease and desist with penalties is not to be seen as an acknowledgment of the claims asserted with the warning for omission and reimbursement of warning costs.

species

There are immaterialgüterrechtliche , media civil and competition law to cease and desist. There are also regulations outside of these legal areas , according to which a declaration of cease and desist can be requested, for example in § 862 or § 1004 BGB, for example when it comes to the defense against inadmissible immissions ( disturbance of the peace , room volume ).

Intellectual property law

Immaterialgüterrechtliche desist concern exclusive rights such as copyright law , patent law , trademark law , trademark law or design law . With them, for example, the interferer commits a copyright infringement (e.g. illegal downloads from the Internet , file sharing ), in which he can be called upon by the injured author to remove the impairment or, if there is a risk of repetition, to cease and desist ( Section 97 (1) UrhG ). With a cease-and-desist declaration, the interferer undertakes to refrain from any future copyright infringements. This also applies to the other intellectual property rights.

Civil media law

In civil media law, the declaration of cease and desist refers to situations in which people , especially celebrities ( public figures ) are injured in their honor in the mass media, in particular through insult ( Section 823 (2) BGB in conjunction with Section 185 StGB ) , in the case of defamation ( § 186 StGB) or defamation ( § 187 StGB) have to defend themselves against untrue claims , through inadmissible statements a violation of the general personal right i. S. v. Art. 1 para. 1 i. V. m. Art. 2 Abs. 1 GG or have to suffer through inadmissible image publications according to § 823 Abs. 2 BGB i. V. m. § 22 KUG are violated in their right to informational self-determination .

If the report has already been made, subsequent monetary compensation does not make sense because the reputation of the person concerned has already been irrevocably impaired. In the context of preventive legal protection or by means of an injunction, however, action can be taken before publication . In connection with the injunction, the media can be requested to cease and desist. The applicant must make the impending danger credible to the court .

Competition law

A prerequisite for a declaration of cease and desist under competition law is that a competitor intervenes in the competition law order. Those entitled to assert an injunction claim should warn the debtor before initiating legal proceedings and give him the opportunity to resolve the dispute by submitting an obligation to cease and desist with an appropriate contractual penalty ( Section 12 (1) UWG ). Subject of the declaration of the can in the § § 3 UWG (unfair commercial acts) to § 7 UWG (unacceptable nuisance) unfair actions to be.

Legal consequences

If someone violates a declaration of cease and desist made by him, this constitutes a breach of contract , which triggers an obligation to pay compensation according to § 280 BGB. The infringer or interferer is also threatened with an action for an injunction or - in the case of an injunction subject to penalties - the due date of the agreed contractual penalty.

Individual evidence

  1. Artur-Axel Wandtke (Ed.), Medienrecht: Praxishandbuch , 2008, p. 237 Rn. 30th
  2. BGHZ 130, 288 , 289
  3. BGH, judgment of September 24, 2013, Az .: I ZR 219/12 = BGH GRUR 2013, 1252
  4. Insa Sjurts (ed.), Gabler Lexikon Medien Wirtschaft , 2004, p. 602