In two decisions concerning press law cases, the Federal Constitutional Court (FCC) emphasized the requirements for issuance of preliminary injunctions without any hearing (orders of 30/09/2018 – 1 BvR 1783 u. 1 BvR 2421/17). These requirements should also apply to IP infringements.
Pursuant to the FCC’s findings, the courts have a wide margin of discretion when deciding whether to rule with or without a hearing. On the other hand, a decision without any submission from the defendant should only be admissible in very exceptional cases. A sufficient participation of the defendant can consist in the petitioner presenting to the court the defendant’s response to a previous warning letter. This, however, would require identity between the grounds brought in the warning letter with those in the preliminary injunction request. – As a practical consequence, warning letters should already be as substantiated as preliminary injunction requests.
Furthermore, the FCC emphasizes that notices on points of law or fact, which the courts give – usually over the telephone – to petitioners, must be communicated to the defendants, too. This also applies where a preliminary injunction request is finally dismissed. – This is practically relevant since many defendants will learn only in this way from the court proceedings, as the German Code of Civil Procedure (Zivilprozessordnung = ZPO) stipulates that defendants shall not be notified of such dismissing decisions. To the extent that defendants will now be informed of the proceedings more often, they will get opportunity to claim reimbursement of costs (if any) and can better rate their chances in possible ensuing main proceedings.