Nils Graber Die Rückrufverpflichtung des Unterlassungsschuldners im Lauterkeits- und Immaterialgüterrecht

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In four leading decisions, published between 2016 and 2018, the Federal Court of Justice clarified that a debtor for an injunction in unfair competition and intellectual property law must, in principle, take active action beyond its own legal sphere of influence vis-à-vis legally independent third parties and has to recall already delivered products.

The duty of the debtor to recall has subsequently developed into one of the most controversial issues in the field of unfair competition and intellectual property law. For both practitioners and academics, it gives rise to a multitude of questions and problems that have not yet been fully clarified by case law.

The present work aims to clear up some of the uncertainties that have arisen about the obligation to recall and to clarify when and in what form a debtor under a cease-and-desist order must take active action vis-à-vis its customers or other third parties.

In doing so, the author examines and analyses the requirements that the Federal Court of Justice and the courts of lower instance impose on injunction debtors and attempts to establish generally applicable criteria.

Furthermore, due to their special importance in the field of intellectual property law, the pre-litigation measures of warning and submission as well as the preliminary injunction proceedings are considered separately. In particular, the author examines the extent to which the obligation to recall changes when the prohibition stems from a cease-and-desist agreement or an interim injunction and what special features arise within these proceedings.