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“Cease Also Includes Recall” (Unterlassung beinhaltet auch Rückruf)

Decision of the Federal Supreme Court (Bundesgerichtshof) 29 September 2016 – Case No. I ZB 34/15

  1. a)

    In the absence of indications to the contrary, the order to cease and desist a conduct that has given rise to a continuing interference is as a rule to be interpreted as encompassing not only ceasing such conduct, but also performing possible and reasonable acts to remedy the interference. This can include the obligation to exert influence on third parties to the extent possible and reasonable if this is necessary to eliminate the interference. Accordingly, an obligor who has been ordered to cease and desist selling a product must as a rule recall the product in order to ensure that products already delivered are not further sold by its customers.

  2. b)

    The question of which measures are appropriate to remedy a continuing interference under consideration of the principle of proportionality can be left to the execution proceeding if the obligor has not already claimed in the main proceedings that it is impossible or unreasonable for him to perform the actions necessary according to the situation to eliminate the interference.

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Translated by Allison Felmy.

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Act Against Unfair Competition, Sec. 8(1), first sentence. “Cease Also Includes Recall” (Unterlassung beinhaltet auch Rückruf). IIC 48, 612–617 (2017). https://doi.org/10.1007/s40319-017-0617-7

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Keywords

  • Cease and desist order
  • Scope of an order to cease and desist
  • Cease conduct
  • Recall of product
  • Principle of proportionality
  • Elimination of interference