Definition and legal classification of the preventive injunction
Die preventive injunction is a concept in civil procedural law. It enables the plaintiff to prevent an imminent but not yet occurred infringement of rights through a court judgment. The aim is to proactively prevent future impairments of one’s own legal interests that are concretely feared due to the circumstances.
While the classic injunction often concerns already realized unlawful conduct, the preventive injunction is aimed at averting an imminent, and thus not yet materialized, risk. The preventive injunction is particularly applied in tort law, competition law, personal rights, and intellectual property law. It holds substantial practical significance for effective legal protection against future infringements.
Requirements for a preventive injunction
Requirement of an imminent infringement
The basic prerequisite for a preventive injunction is an objectively ascertainable, serious, and concrete risk of a rights infringement. There must be a real and not merely abstract possibility that the defendant will soon engage in conduct that infringes or violates a right of the plaintiff.
This imminent danger must be plausibly substantiated by external circumstances. Concrete indications, such as announcements, certain preparations, or behaviors of the defendant, play a central role here.
Legal basis for the claim
The claim for a preventive injunction may arise from various legal provisions, including:
- Section 1004 (1) sentence 2 BGB (removal and injunction claim for impairment of property)
- Section 823 BGB in conjunction with Section 1004 BGB (for other absolute rights)
- Section 824 BGB (in the case of false factual statements)
- Sections 823 et seq. BGB in connection with general right of personality
- Sections 8 et seq. UWG (claim for injunction in competition law)
- Sections 97, 98 UrhG (copyright), Section 14 MarkenG (trademark law) as well as corresponding provisions in the field of industrial property protection
No priority of other remedies
A preventive injunction is only admissible if there is no other milder or sufficiently equivalent legal remedy available. For example, a preliminary injunction may be appropriate if there is urgent time pressure.
Risk of repetition and initial infringement
In the case of a classic injunction, what is referred to as the risk of repetition is assumed in cases where an infringement has already occurred. The preventive injunction, on the other hand, is based on what is known as the risk of initial infringement, i.e. the imminent first infringement.
Legal significance and distinctions
Distinction from the preventive declaratory action
The preventive declaratory action is aimed merely at clarifying a disputed legal relationship (Section 256 ZPO), whereas the preventive injunction specifically targets the prevention of an impairment that is imminent in the near future.
No claim for defense in merely hypothetical dangers
A preventive injunction requires a sufficiently probable prognosis. Mere fears that cannot be objectively supported by concrete facts are not sufficient. This distinguishes the preventive injunction from mere dangers and suspicions.
Relationship to official measures
In certain cases, particularly in public law, the claim to a preventive injunction can be precluded by overriding official measures. This must be examined regularly.
Procedure for the preventive injunction
Right to bring an action
Any person whose absolutely protected right (e.g. property, health, personality right) is concretely affected by the imminent infringement is, in principle, entitled to bring an action. In competition law, competitors or certain interest groups may also have standing, pursuant to Section 8 UWG.
Content of the application
The statement of claim must designate the conduct to be refrained from precisely and unambiguously. General or vague applications are inadmissible, as the defendant must be able to clearly recognize the scope of their obligation.
Burden of proof
The plaintiff must substantiate and provide evidence of the circumstances giving rise to the risk of initial infringement. If unlawful conduct is threatened due to statements or actions already commenced, such as advertising measures or announcements, these must be set out in detail.
Legal consequences of a successful injunction
If the action is deemed well-founded, an injunction order will be issued prohibiting the defendant from engaging in the contested conduct in the future. If the defendant subsequently breaches this decision, fines, imprisonment, or further court measures may be imposed (Section 890 ZPO).
Areas of application and practical examples
Competition law and industrial property protection
In the field of competition law preventive injunctions are common, for example in cases of unlawful advertising or other misleading business practices that are announced or specifically prepared. This type of action is also relevant in trademark or copyright law, e.g. for impending product piracy shortly before market launch.
Right of personality
A preventive injunction is also possible in cases where a reputation-damaging press publication or disclosure of sensitive personal data has been specifically announced.
Protection of intellectual property
In intellectual property law, the preventive injunction serves as proactive protection against imminent infringements of patents, trademarks, designs, or copyrights, for example through the announcement of imitation products at trade fairs.
Special features and limitations
Principle of subsidiarity
The preventive injunction is subsidiary to other legal remedies, for example if a public or civil law order is already imminent and can ensure effective legal protection.
Limits of preventive legal protection
Courts act with restraint to avoid intervening in purely speculative or hypothetical risk situations. A sufficient probability must be demonstrated; a potential shift of the burden of proof, as may occur with already occurred infringements (risk of repetition), does not take place.
Abuse of the right to injunction
The principle of good faith (Section 242 BGB) also applies to preventive injunctions. If the action is abusive or serves solely to hinder legitimate interests of the defendant, it may be dismissed.
Conclusion
Die preventive injunction is an important instrument for the protection of threatened legal interests in German civil law. It enables effective defense against imminent risks of future infringements before any damage occurs. However, success requires the substantiated demonstration of a concrete risk of a first infringement. It is particularly applied in competition, personality, and intellectual property law. Its procedural and substantive requirements are high, requiring careful legal justification and precise description of the imminent unlawful conduct.
Frequently asked questions
When is the filing of a preventive injunction legally permissible?
A preventive injunction is generally permissible when there is a concrete risk of a first infringement, i.e. when an imminent infringement is to be feared even though the infringing act has not yet occurred. The prerequisite is that the plaintiff can present and substantiate that the defendant will seriously and imminently interfere with his rights in the foreseeable future, for example through announcements, preparatory actions, concrete planning, or setting a legal framework (e.g. by warnings or public statements). Mere fears or abstract risks are not sufficient. Typical areas of application are especially competition law, trademark law, and general personality rights.
What requirements does case law set for the presentation of initial infringement risk?
Case law requires that the risk of initial infringement be specifically, tangibly, and objectively presented. The plaintiff must set out concrete facts that unequivocally establish the seriousness of the imminent rights infringement. General claims are not sufficient; there must be indications of actually impending injurious actions, such as advertisements, investments in the relevant distribution channels, official license applications, or business-relevant announcements. The courts often apply strict standards to the evidentiary requirements, particularly in competition law disputes.
How does a preventive injunction differ from a defense against an already occurred infringement?
A preventive injunction differs from the defense against already occurred infringements in that it is directed against the defendant’s initial act, and not against the repetition of an act that has already taken place. While the risk of repetition is based on prior unlawful conduct, a preventive action requires a prognosis that the contested conduct is likely to occur. The crucial difference is that the plaintiff does not seek measures to eliminate or stop an already realized infringement, but instead seeks protection against future, but not yet realized, conduct.
What are the legal consequences of a successful preventive injunction?
If the preventive injunction is deemed justified by the court, an injunction is issued prohibiting the defendant from carrying out the concretely imminent act. In the event of non-compliance, enforcement measures such as fines or imprisonment (Section 890 ZPO) may be imposed. The court’s decision also has a preventive effect: It creates legal certainty and protects the plaintiff from infringements that could otherwise be expected to occur due to the concrete underlying danger. A conviction within the framework of a preventive injunction obliges the defendant not to become a “first offender.”
Who bears the burden of presentation and proof in a preventive injunction?
In a preventive injunction, the plaintiff generally bears the burden of presentation and substantiation regarding the existence of a risk of initial infringement. This means the plaintiff must substantiate and prove that, from the perspective of an objective third party and considering all circumstances, there is a serious possibility of a future infringing act. The defendant may then contest the circumstances presented in detail or put forward facts that refute the assumption of an imminent infringement.
What role do out-of-court measures play in the context of a preventive injunction?
Out-of-court measures, such as warnings, can help eliminate the risk when there are concrete indications, but do not preclude the possibility of a preventive injunction if the risk of initial infringement is not finally eliminated thereby. For example, if the (potential) disruptor refuses to issue a cease-and-desist declaration subject to a penalty, or if their behavior continues to be likely to result in an infringement in the future, the injunction remains admissible for preventive defense. However, courts regularly examine whether an out-of-court warning would have been expedient and appropriate.
