Cease-and-desist declaration (Unterlassungserklärung)

In practice

Signing a cease-and-desist declaration should be carefully considered. It is permanently binding and also covers all essentially identical infringements. The versions drafted by the other party are often deliberately too broad and frequently contain an admission of fault that pre-empts the question of costs. The usual approach is a modified declaration with narrower wording, no admission and a penalty that the other party sets at its reasonable discretion, subject to review by the court (known as the ‘Hamburger Brauch’). Under German law, small businesses that generally have fewer than 100 employees owe no contractual penalty at all when a competitor sends them a first cease-and-desist letter over labelling and information duties online. Where protected interests are affected only insignificantly, a maximum penalty of EUR 1,000 applies to these businesses. Once the declaration has been given, the real work begins. The infringement must actually stop, including in catalogues, in platform data and with resellers. Any old listing that can still be accessed may trigger the contractual penalty.