Berlin Regional Court: Atty. Dr. Seyfert vacated an interim injunction to the benefit of his client by proving lack of urgency on the side of the applicant (Case No. 16 O 192/17)

On 01.08.2017, the oral hearing in an urgency proceeding took place before the Berlin Regional Court. The parties are competitors in the field of roof and facade coating. The opposing party had obtained an interim injunction against our client before the Berlin Regional Court because the client had allegedly advertised misleadingly with certain statements.

We filed an objection against the interim injunction and thus forced an oral hearing against the applicant before the Berlin Regional Court in this urgency proceeding. To be successful in such summary proceedings, the applicant must have an urgent case against the defendant. In cases where unfair competition (e.g. misleading advertising) is in dispute under the Unfair Competition Act (UWG), urgency is generally presumed under § 12(2) UWG. However, the defendant may rebut the statutory presumption of urgency through prima facie evidence.

On our client’s smartphone, we showed the Berlin Regional Court, for the first time at the oral hearing, a video that our client had already sent to the applicant more than a year ago using the instant messaging service WhatsApp. The video showed our client’s advertising material, which contained the advertising statements in dispute. The Berlin Regional Court allowed this video to be viewed and considered this video sufficient to rebut the presumption of urgency. Anyone who waits for more than a year on certain issues to then take hasty allegation against someone else in this regard makes it clear that he is not in such a hurry to enforce the law. The fact that the applicant had simply forgotten about the existence of this video did not exonerate the applicant.

The Berlin Regional Court revoked the interim injunction it had itself issued against our client because of the lack of urgency we had plausibly demonstrated with the help of the WhatsApp video. The substantive issues of the case no longer needed to be clarified. The applicant had to bear all costs of the proceedings by order of the Berlin Regional Court fixing costs. Our client (defendant) had to be fully compensated by the applicant.