Trade fairs are important platforms where companies showcase their new products and services, establish business connections, and increase their brand recognition. However, in this intensely competitive environment, legal disputes can also frequently arise. Intellectual property rights (trademarks, patents, designs, etc.) and unfair competition issues in particular come to the fore during fair periods and may call for a rapid resolution process. This is where the interim injunction (einstweilige Verfügung) mechanism, applied in many countries and above all in Germany, comes into play.
Below, the steps that can be taken, the points to be considered, and possible strategies when confronted with an interim injunction (einstweilige Verfügung) in the context of trade fairs are examined in detail.
1. What Is an Interim Injunction (Einstweilige Verfügung) and How Does It Relate to Trade Fairs?
An interim injunction (einstweilige Verfügung) is an urgent, provisional order issued by the courts. When a competition, trademark, or intellectual property dispute arises at a trade fair, a competing company or rights holder may apply to the court and request that a particular act be immediately stopped or prohibited. For example:
- Preventing a product alleged to infringe an intellectual property right from being exhibited at the fair,
- Seizure of a stand or advertising materials on the allegation that a competing company has engaged in unfair promotion, disparagement, or trademark infringement,
- Halting marketing messaging that misleads visitors.
Fairs are usually short-term events, giving rise to a need for rapid intervention. For this reason, the applicant (for example, a patent or trademark holder) may request a decision from the court within a short time. By issuing an interim injunction, the court can ensure that the measures are enforced during the fair or before it.
For detailed information on examples of interim injunction risks that may be encountered at trade fairs in Germany, you can read this article: Secure Your Trade Fair Participation in Germany: Protect Yourself Against Your Competitors’ Interim Injunctions with a Protective Brief
2. To Prevent an Injunction: Schutzschrift (Protective Brief)
If you are concerned that an interim injunction (einstweilige Verfügung) may be issued against you at or around the time of the fair, you can make use of the legal mechanism known as the “Schutzschrift” (protective writing or protective brief). This practice is particularly common in Germany; similar preventive statements or defence documents may also exist in other countries.
- Preparing a protective brief when in doubt: If you have previously been given a warning by means of a cease-and-desist letter (Abmahnung) stating, “we will seek an interim injunction if the specified conduct continues,” submitting a Schutzschrift to the court sets out your defence in advance of any possible interim injunction application.
- How is it prepared? A Schutzschrift has, in a sense, the character of an anticipated “defence to a claim.” Legal arguments, together with evidence and reasoning showing that the warning or claim in question is unjustified/incorrect, are set out in this document.
- Who prepares it and where is it filed? It is usually prepared by a lawyer and, in Germany, is held with the Zentrales Schutzschriftenregister (Central Register of Protective Briefs). In this way, your defence can be accessed quickly in the event of future interim injunction applications by the applicant or the court.
In short, if you have received a warning from your competitors before the fair and are concerned that a court order may be issued against you immediately, you can reduce your risk by preparing a Schutzschrift.
For detailed information on protective briefs, you can read this article: Secure Your Trade Fair Participation in Germany: Protect Yourself Against Your Competitors’ Interim Injunctions with a Protective Brief
3. What Should You Do If an Interim Injunction (Einstweilige Verfügung) Reaches You?
Being served with an interim injunction during a trade fair or immediately before it is a stressful situation. It is important to immediately comply with the activities that are prohibited or halted as set out in the order; otherwise, severe sanctions may follow. During this process, you should pay attention to the following steps:
3.1. Check Whether the Order Has Been Served and How It Is Enforced
- Service and effect: The interim injunction must be formally served (via the court or a bailiff) and must comply with the rules on service of documents.
- Vollziehung (Enforcement/Execution) Period: In Germany, depending on the type of order, service must take place within a certain period:
- If the order is a “Beschlussverfügung” (injunction issued by court order), it must be served on the respondent, by party service, within one month of the order being served on the applicant (§ 929(2), § 936 ZPO).
- If the order is an “Urteilsverfügung” (injunction issued by judgment), service is mandatory within one month from the date the judgment is pronounced.
If the order has not been served even though these periods have elapsed, there may be legal defects in the order and it may be subject to annulment.
3.2. The Obligation to Comply Immediately
- Risk of violation (Zuwiderhandlung): If you continue to disregard the acts prohibited by the interim injunction, the enforcement court may, on the creditor’s application, impose a coercive penalty (Ordnungsgeld) of up to EUR 250,000 or coercive detention (Ordnungshaft) not exceeding two years in total (§ 890(1) ZPO); this presupposes a warning (Androhung) contained in the order or issued separately (§ 890(2) ZPO).
- Impact During the Fair: If the injunction has been imposed because of a product you exhibit at the fair or because of your marketing activities, you must immediately remove the product from your stand or promptly correct the prohibited advertising and similar materials. Otherwise, you may face immediate penalty sanctions.
3.3. Have the Order’s Lawfulness Reviewed and Consider an Objection (Widerspruch)
- Grounds for the order: An interim injunction requires an element of “substantive claim” (Verfügungsanspruch) and an element of “urgency” (Verfügungsgrund).
- Doubts as to the claim (for example, if there is genuinely no trademark infringement or if the competitor’s allegation does not reflect the truth),
- The absence of any concrete element of urgency (Dringlichkeit) (for example, where the applicant has waited for a long time).
If there are doubts on these points, you can lodge a Widerspruch (§ 924, § 936 ZPO) against an injunction granted by Beschluss without a hearing; against an Urteilsverfügung issued after an oral hearing the remedy is an appeal (Berufung). There are also the routes of requiring the applicant to bring the main action (§ 926 ZPO) and revocation on changed circumstances (§ 927 ZPO). As a result of the Widerspruch, the court hears the parties and reviews the order again.
3.4. Accepting the Injunction: Abschlusserklärung (Closing Declaration)
You are not obliged in every case to try to have the order lifted by objection or by other means. If you consider the order to be well-founded or do not wish to prolong the dispute any further, you can “accept” the interim injunction. To do this, an Abschlusserklärung (closing declaration) is submitted:
Its significance: An injunction is normally a “provisional” form of legal protection. However, by submitting an Abschlusserklärung, a party accepts that “this provisional order becomes final.” As a result, it may not be necessary to bring a main action.
Process and costs: If you wish to accept the injunction, it is advisable to do so without delay. Otherwise, the party holding the order may formally invite you to make the declaration by means of an Abschlussschreiben (closing letter), which will generate additional costs for you.
In short: If you believe the interim injunction was correctly issued or do not wish to prolong the dispute, you can minimise financial loss and costs by submitting an Abschlusserklärung at an early stage.
4. Risks Encountered at Trade Fairs and Recommendations
4.1. Carry Out Intellectual Property Checks in Advance
Before the fair, make sure that the products or advertising materials you will exhibit do not infringe intellectual property rights. Particularly if you are participating in fairs in Germany, rights holders may have a strong tendency to use fast and effective legal remedies.
For detailed information on Freedom to Operate (FTO) Analysis: The Contribution of Freedom to Operate (FTO) Analysis to Protective Briefs Concerning Industrial Property Rights
4.2. Monitor Competitors’ Practices
Research, before the fair, the claims your competitors might raise against you or your business. Being proactive is important in preventing surprise orders.
4.3. Work with a Specialist Lawyer
International fairs may be subject to the practices of different legal systems. For this reason, particularly in countries such as Germany, working with a lawyer well-versed in the subject to have a Schutzschrift prepared or to manage the objection process provides a strategic advantage.
4.4. Consider the Settlement Route
During the fair period, lengthy legal proceedings can lead to a loss of both time and reputation. In some cases, a swift settlement may be more economical and efficient for both parties.
4.5. Comply with Injunctions and Object Where Necessary
Immediately complying with the requirements of the injunction will prevent serious fines or more severe sanctions. If you believe the order is unjust, resort to the Widerspruch route without wasting time.
4.6. The Question of the Abschlusserklärung
Accepting the injunction may be to your benefit. By accepting that the injunction becomes not merely provisional but final, you can spare yourself the trouble of an additional lawsuit. However, before making this decision, it is always advisable to obtain expert advice.
5. Conclusion
Trade fairs are events where competition is at its most intense and where innovations and brands come to the fore. For this reason, rapid legal measures such as the interim injunction (einstweilige Verfügung) can significantly affect fair participants. If you are concerned that an interim injunction may be issued against you, preparing a Schutzschrift (protective writing or protective brief) is an important step. In this way, you set out your defence in advance of any possible court application.
If this injunction has reached you, you should review the order immediately to have its lawfulness examined, and you should be aware that you may face heavy fines if the violation continues. If you believe the order is unlawful, you can aim to have it set aside via the Widerspruch (objection) route. On the other hand, accepting the injunction or ending the matter by submitting an Abschlusserklärung is also an option that can reduce costs and shorten the process.
In every case, given the short duration and international dimension of fairs, obtaining timely and professional legal advice will help prevent potentially major losses. Effective preparation before the fair and coordinated work with a legal team help to minimise surprise orders.
