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Legal Assessment of a Cease-and-Desist Letter (Abmahnung) by Online Law Experts

A cease-and-desist letter (Abmahnung) is a formal legal notice demanding that a recipient stop engaging in alleged unlawful behavior. In online law (Onlinerecht), Abmahnungen are common in areas such as copyright infringement, data protection violations, trademark disputes, unfair competition (UWG), and e-commerce non-compliance. Our role as online law experts is to assess, challenge, or respond strategically to such warnings.

1. Key Areas We Assess in a Cease-and-Desist Letter (Abmahnung)

A. Formal Legality & Validity Check

The first step in handling a cease-and-desist letter is verifying whether it is legally valid and not abusive.

✅ Key Checks:

• Is the Abmahnung specific and clear about the alleged violation?
• Is it sent by an authorized party (law firm, competitor, rights holder)?
• Does it include a reasonable deadline for response?
• Is it accompanied by a legal justification (statutory references, case law)?

❌ Example of an Invalid Cease-and-Desist Letter:
A warning letter without a clear legal basis or one that demands excessive penalties could be deemed abusive (missbräuchliche Abmahnung) and challenged in court.

B. Assessment of Alleged Legal Violations

We carefully examine whether the claims made in the Abmahnung are legally justified and whether the accused party has actually committed a violation.

1. Copyright Infringement (Urheberrechtsverletzung – UrhG)

• Allegation: Unauthorized use of images, text, videos, music.
• Key Defense Strategies:
• Does the recipient own a valid license for the content?
• Was the use covered by exceptions (e.g., quotation rights, fair use)?
• Has the claim exceeded the statute of limitations (§ 102 UrhG, typically 3 years)?

✅ Example Case:
A photographer demands compensation for unauthorized image use, but the website operator proves that the image was royalty-free, invalidating the claim.

2. Trademark & Brand Protection (Markenrecht – MarkenG)

• Allegation: Use of a protected brand name, logo, or slogan.
• Key Defense Strategies:
• Is the trademark actually registered and protected?
• Does the use qualify as fair use (e.g., comparative advertising)?
• Has the trademark owner tolerated the usage for years?

✅ Example Case:
A company receives a warning for using a generic word that has been wrongfully registered as a trademark, making the Abmahnung contestable.

3. Unfair Competition & Advertising Law (UWG – Gesetz gegen unlauteren Wettbewerb)

• Allegation: Deceptive advertising, misleading consumers, or hidden advertising.
• Key Defense Strategies:
• Is the claim exaggerated or speculative?
• Did the company comply with advertising disclosure laws (§ 5 UWG)?
• Is the Abmahnung abusive or an attempt to eliminate competition?

✅ Example Case:
An influencer receives an Abmahnung for hidden advertising, but proves that the post was not a paid collaboration, making the warning letter invalid.

4. GDPR & Data Protection Violations (DSGVO – Datenschutz-Grundverordnung)

• Allegation: Improper data collection, missing privacy policies, unauthorized cookies.
• Key Defense Strategies:
• Did the company obtain proper user consent?
• Was the data used for a legitimate purpose under GDPR Art. 6?
• Is the fine proportionate, or is it excessive?

✅ Example Case:
A business is warned for using tracking cookies without consent, but successfully argues that only essential cookies were used, making the claim invalid.

2. Recommended Actions in Response to an Abmahnung

A. Challenge or Reject an Unfounded Abmahnung

If the warning is legally invalid or abusive, we can:
✔ Issue a counter-warning (Gegenabmahnung).
✔ Refuse to sign the cease-and-desist declaration.
✔ Challenge the case in court if necessary.

✅ Example Case:
A law firm sends mass warnings (Massenabmahnungen) against small businesses for minor website mistakes. Courts have ruled such actions as abusive (missbräuchliche Abmahnungen, BGH Az. I ZR 205/19).

B. Modify & Negotiate the Cease-and-Desist Declaration (Unterlassungserklärung)

If an infringement did occur, the standard cease-and-desist declaration should not be signed blindly. Instead, we:
✔ Modify the declaration to remove excessive penalties.
✔ Negotiate fairer terms (e.g., lower contractual penalties).
✔ Limit liability to avoid future risks.

✅ Example Case:
A company receives an Abmahnung demanding a €5,000 penalty for future violations, but successfully negotiates it down to €500.

C. Settle the Case to Minimize Legal Costs

If there is a risk of losing in court, settlement may be a strategic option:
✔ Negotiate lower fines and legal fees.
✔ Agree to fix compliance issues without admitting guilt.
✔ Ensure no further claims arise from the same issue.

✅ Example Case:
A startup receives an Abmahnung for a misleading checkout process but avoids costly litigation by revising its website and settling for €1,000 instead of €10,000 in court fees.