An Abmahnung is a formal warning letter under German law, typically sent by a lawyer, demanding that you stop an alleged legal violation. If you run a website or online shop with German customers, you may receive one even if your business is based outside Germany.
Finding an Abmahnung in your letterbox or inbox unsettles most people at first. Whether it concerns an alleged copyright infringement, a competition-law violation or a trademark infringement: if you've received an Abmahnung, you need to act quickly and, above all, correctly. In this article you'll learn what an Abmahnung actually means, which steps you should take and which mistakes you must avoid at all costs.
An Abmahnung is a legal instrument used to notify a person or company of an alleged legal violation. The sender demands that you stop the conduct complained of and confirm this by signing a cease-and-desist declaration backed by a contractual penalty (strafbewehrte Unterlassungserklärung). In addition, damages and reimbursement of legal fees are often demanded.
Typical reasons why private individuals or businesses receive an Abmahnung:
The first and most important piece of advice: don't panic. Many Abmahnungen are legally well founded, but by no means are all demands justified in full. At the same time, you should never ignore an Abmahnung; that can make the situation considerably worse.
An Abmahnung usually sets a deadline for submitting a cease-and-desist declaration, often anywhere from a few days to two weeks. These deadlines are deliberately tight to build up pressure. Don't let them rush you into hasty reactions, but do take the deadline seriously.
Collect all relevant documents and evidence. If a website is involved, for example, take screenshots of its current state. Keep the original Abmahnung and all related documents. This documentation may become important later.
The biggest mistake you can make when you receive an Abmahnung is to sign the enclosed cease-and-desist declaration without having it checked. These declarations are often worded very broadly and can bind you for 30 years. Every violation can then trigger high contractual penalties of several thousand euros.
Ignoring an Abmahnung is not a solution. If you don't respond, the sender can go to court and apply for a preliminary injunction or file a lawsuit. That usually becomes considerably more expensive than an appropriate response to the Abmahnung.
Don't pay the amounts demanded without checking them. The legal fees in particular, and any claims for damages, are often set too high and are negotiable.
Not every Abmahnung is automatically justified. Check critically:
If you've received an Abmahnung, legal advice is strongly recommended. A specialised lawyer can assess your chances, check whether the demands are justified and draft an appropriate modified cease-and-desist declaration. The cost of this initial consultation is usually manageable and can save you from much higher follow-up costs.
In many cases it makes sense not to sign the pre-drafted cease-and-desist declaration but to submit a modified version instead. It is more narrowly worded and protects you better against excessive contractual penalties. A specialist lawyer can draft such a declaration for you.
The costs of an Abmahnung typically consist of:
The amount of the legal fees depends on the amount in dispute, which is often set too high. For private individuals, upper limits also apply in certain cases: since the change in the law in 2013 (Section 97a(3) of the German Copyright Act, UrhG), the costs of a copyright Abmahnung sent to a consumer over a first-time infringement have been capped.
A special form is the file-sharing Abmahnung over illegal uploads or downloads. Here, the person who holds the internet connection is often the one who receives it, even if they did not share any files themselves. In these cases there are specific lines of defence, for example if other people had access to the internet connection.
If you've received an Abmahnung, there's no reason to panic, but there is every reason to act with care. Don't sign anything in haste, don't ignore the Abmahnung and get expert support. With the right approach, excessive demands can often be reduced and long-term legal obligations avoided. The earlier you seek qualified advice, the better you can protect your rights and avoid costly mistakes.
This article provides general information only and does not replace individual legal advice.