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20.01.2017

Federal Court of Justice: Injunction can involve duty to call merchandise back

The Federal Court of Justice confirmed in a headnote decision that an injunction may comprise implicitly the duty to call back illegally marketed goods from the consignees (order of 29/09/2016 – I ZB 34/15). Although the debtor may not be able to legally force the return of the goods, he/she shall at least attempt a call back. A debtor claiming such an obligation to be disproportionate in the case at hand, must raise such an objection in the main proceedings already, i.e. not within enforcement proceedings. 

The court’s headnote and reasoning do not focus on particular types of breaches of law, so that these rules should be accounted for not only in competition law, but also to infringements of IP rights. The court did not comment as to whether the debtor has to offer his/her customers to repay the purchase price, as is usually required to comply with call back duties stipulated by special statutory provisions for call back claims in case of IP infringements.

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