Decision on cease-and-desist declarations according to the ‘Hamburg custom’, MIP 2023

In its judgment of December 1 2022 (Case No. I ZR 144/21), the German Federal Court of Justice (FCJ) clarified several important points, which Dr Christian Meyer discusses in more detail in his article. Firstly, that the delivery of a cease-and-desist declaration with a penalty clause can also be made after a second infringement by means of a contractual penalty promise in accordance with the so-called Hamburg custom. Secondly, that receipt alone of a cease-and-desist declaration with a penalty clause does not lead to the cessation of the danger of a repetition if the plaintiff declines to accept it.