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Germany: Scope of cease and desist orders – To recall, or not to recall?

There is a discussion in Germany whether an infringer who has received an injunction has to actively recall the products. And the German recall-saga continues, as the Higher Regional Court (OLG) of Düsseldorf has just recently decided in an unfair competition matter that the obligation to cease and desist from distributing products does basically not require the defendant to recall products from its independent commercial customers, nor to request the resellers to suspend the sale of the products (decision of 14 February 2019 in Case I-20 W 26/18). This approach is in plain contrast to previous decisions of the German Federal Court of Justice (BGH).

Sascha Abrar analyses the decision for Kluwer Trademark Blog, GRUR-Prax (2019, p. 221) and Lebensmittelzeitung_ed. 26. April 2019, p. 23. He comes to the conclusion that the CJEU should set the legal framework as soon as possible, in light of the potential European dimension of the issue, because according to the laws of many other EU member states a simple cease and desist-claim does not imply a product recall.