A formal warning is an extrajudicial demand to cease and desist. Such warnings are often used in copyright and competition law. Whether or not a formal warning is justified, depends on the circumstances of the individual case.
In most cases the warning is formulated and sent by an attorney. Normally the delivery of a declaration to cease and desistbwith a penalty clause is demanded alongside the payment of a lump sum of money.
If you receive such a warning, keep calm. Please do not ignore the warning.
Checklist for examining a formal warning
1. When did you become aware of the warning?
Take note of the date when you received the warning. This date is important for deadlines.
2. How was the formal warning delivered?
Did the warning come as registered mail, a simple letter or in another form, such as a fax or email? When the warning only comes as an email, it couold be a fake warning. Please examine the attachment with a virus scanner and do not open unexamined if it is not a PDF file.
3. Was the warning sent by the correct person?
If the address is correct and you are the intended recipient, you must move forward with an examination of the warning.
If the address is however false and you are not the intended recipient, you can send the warning back with reference to the incorrect address. You should however be cautious when sending back a warning.
4. What is the deadline set by the warning?
Would a preliminary transmission by fax be accepted?
5. Is the warning justified, because a violation exists?
This is the central point of the checklist and should under no circumstances be dealt with without specialist examination. If in doubt, contact a legal attorney. The examination is based on the scale of the violation referred to in the warning. Here it always depends on the circumstances of the individual case. The alleged violation is examined by looking at your own conduct, asking whether or not a violation against competition or coppyright law has occurred as a result.
Our experience shows that the legal situation is often not as clear as the warnings make out. If the warning is proven to be justified following specialist examination, proceed to the next point in the checklist. If the warning is however unjustified, go directly to point 9 of the list, the rejection of a warning.
6. Is the warning formulated by the legal rights holder or the appropriate person?
In copyright law it is imperative that one examines whether the person who sent the warning is the copyright and associated usage rights holder. In other words, if the person is authorised in the first place to send such a formal warning.
In competition law not every warning is valid. Warnings are only permissable from competitors, organisations with legal capacity to promote competitive interests and other bodies such as the chamber of industry and commerce.
There is an upmost duty to examine the warning and its requirements. If the warning is unjustified, please proceed directly to point 9 of the checklist, the rejection of the formal warning.
7. How should I react to the warning?
Stay calm. On receiving such a warning, the following points should be considered.
- Do not sign the attached, unexamined, declaration to cease and desist.
- Do not pay the opposing side.
- Do not call the opposing side.
- Do not allow the deadline to elapse.
If there is no legal department in the company, a specialist attorney or organisation should be assigned to conduct the examination. Consumer agencies can also help consumers against such formal warnings.
8. How to react if the warning is justified?
If the warning is justified there are various possibilites as to how to react. What is always important is to always have the deadline in mind and if necessary, request an extension.
As a consensual plea deal normally a modified declaration to cease and desist is given and an amicable solution regarding costs is found.
This is always recommended if after a specialist examination of the warning, there is a violation of copyright or personal rights.
In order to avoid a possible interlocutory injunction and as a defence against further conflict, a modified declaration to cease and desist is given. This declaration ultimately rejects the warning and the associated payment claim. This is always recommended when there is doubt surrounding the legitimacy of the warning.
9. Rejection of an unjustified warning
Following examination, if the warning is unjustified, there are numerous possibilites as to how to react.. Depending on the case, the costs for the examination of the warning can be reimbursed by the opposing side. Alternatively, one can go on the offensive and request a declaration stating the warning is invalid.
Our service for you:
We are copyright and competition law specialists. We have already successfully helped hundreds of clients concerned with formal warnings. What exactly we can do for you, depends on the indivual warning.
We gladly examine these warnings and provide the optimal defence strategy for each case.
Our extrajudicial legal advice and assistance comes at a fixed price.
Our fixed rate includes:
Thorough examination of the warning, comprehensive advice and the development of an optimal defense strategy created for your individual case.
The delivery of a faultless, legally modified declaration to cease and desist.
As your personal representative, we undertake all correspondences with the opposing side.
Whether you are in Berlin or live elsewhere, we are here to provide a good solution to your legal problems and to answer your questions nationwide.
Get in touch with us today and see how we can be of assistance.