The demand letter ("Abmahnung") is a written call upon a person to discontinue a certain conduct or to satisfy a claim. This kind of demand letters (Abmahnschreiben, called in Austria more frequently Aufforderungsschreiben) is to be found frequently within the scope of the protection of industrial rights and they have in general the violation of copyright or some competition law claim under the UWG as subject. A demand letter due to the infringement of intellectual property is dealing usually with a claim for discontinuance to be enforced against the party who has committed the act of infringement. Just in the event of infringements in internet the demand letter is often the first occasion where the infringer is confronted to the act of violation perpetrated by him or her. In most cases here it is about a call by an attorney at law via a counsel’s demand letter.
These demand letters may be formulated in various manners depending on the subject. Demand letters written by an attorney at law are in most cases of a length of 4 to 7 pages and contain first of all the description of the infringing act, potentially with simultaneous enclosure of proofs (screenshot, photo etc.). Then a legal conclusion shall be drawn from the facts of the case as they have been described, where those statutory provisions, against which the person subject to warning should have contravened, shall be usually cited. Finally, in most cases formulation of the claims to be fulfilled by the infringer will be quoted, for the satisfaction of which usually a time limit will be fixed for him or her.
If the subject of the demand letter is intellectual property and/or the infringement thereof, the claim consists usually in obliging to discontinuance . This is made via a statement of discontinuance, which is usually provided with a contractual penalty for the case of the repetition of the infringing act. According to the judicature only such a statement of discontinuance subject to punishment may be capable to eliminate the risk of repetition in most cases.
If the person having been called upon fails to provide a suitable statement of discontinuance, or if he or she does not oblige himself or herself in any other manner to the discontinuance – for instance via offering to enter anytime into an executable compromise –, the suit for discontinuance shall be open for the person injured in his or her rights.
In the event of the infringement of intellectual property the title owner is entitled, in addition to discontinuance, frequently to further claims, for instance to a fair indemnity or licence fee, which must be supplied by the infringing party on the grounds of unlawful use. The amount may be fixed on the basis of various criteria, like e.g. the duration and intensity of the use. If the obligee wishes to make the claim depending on the benefit that the person subject to demand has derived from the unlawful use, he or she shall be usually entitled to a claim for account rendering, which may be, in the event of necessity, enforced in the judicial way via a gradual claim ("Stufenklage", where the plaintiff may request first of all the statement of accounts and submit a claim with precise amounts thereafter only).
Finally, the person injured in his or her rights has a claim for the refund of the costs he or she has incurred due to the infringing action, including the costs of demand by counsel, the sum of which shall depend on the amount of the claim and on the quantity of work brought about thereby.
The person having received a counsel’s demand letter should not take this lightly, even if he or she thinks that the enforced claim is legally non-existent. He or she who does not react at all to a demand, exposes himself or herself to the risk that the title owner will file a suit, whereby much higher costs shall be generated, to whose reimbursement the party subject to the demand can be obliged. Therefore, in such cases it is recommended to ask the advice of an attorney at law.
The Esztegar Law Office offers advice not only for title owners upon the enforcement of their claims via demand letter or suit, but also for persons having been wrongfully called upon in defending the demand.