Monday 12 January 2015

Damages for Unjustified Preliminary Order

The decision I ZR 249/12 of the BGH deals with the claim to damages of a party having observed a preliminary order which finally turned out to be unjustified.

The Hamburg district court had issued a preliminary injunction ordering to stop selling trousers allegedly infringing rights in designer jeans called "Nero". The injunction was issued on June 9, 2006, a simple copy of the injunction was sent to the defendant on June 12, 2006 by the plaintiff and the defendant stopped producing the trousers on June 20, 2006. A formal notification took place on July 6, 2006.

The preliminary injunction was initially confirmed in the procedure on the merits but then withdrawn by the alleged right-holder in the course of the oral proceedings on March 14, 2007. The final decision on non-infringement was issued on December 19, 2007.

The dispute went on for several years and through various instances including a decision of the BGH in 2009. The defendant never resumed the production of his version of the "Nero" jeans but requested roughly 0.5 Million Euros consequential damages for the lost sales between June 2006 and December 2007.

The BGH ruled that the claim to damages is to be limited to the period in which the preliminary injunction was in legal force, i.e. from July 6, 2006 to March 14, 2007 and that the fact that the order was observed before or after this period was not a compulsory consequence of the preliminary order such that the claim to damages for the lost sales is limited to the above period.

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