Receiving a warning letter: what to do now
Do not sign the enclosed cease-and-desist declaration unchecked. It is regularly drawn more widely than the claim the other side actually has, and it binds you under penalty indefinitely.
The first steps
Step 1: Note the deadline
Deadlines are short, often a few days. Record receipt and expiry before you turn to the substance.
Step 2: Secure the facts
Screenshot of the state complained of, date of publication, origin of the material used. Change nothing before the position is documented.
Step 3: Assess the claim
Does the right exist, is the sender entitled to it, is the allegation accurate, and might limitation or forfeiture already apply?
Step 4: Choose the response
Modified undertaking, rejection, or negotiation over costs. Which route is right follows from the assessment.
Step 5: Rule out repetition
Once an undertaking is given, every further breach costs a contractual penalty. The state complained of therefore has to be removed fully and permanently, including in archives and caches.
What has to be assessed
Speaks for the other side
- An existing and validly registered right
- Entitlement of this particular sender
- A breach that can be evidenced from the documented state
- A risk of first or repeated infringement that persists
Speaks against the demand
- An undertaking drawn far wider than the allegation
- Missing entitlement or an unclear chain of rights
- Permitted use, for instance through licence, exception or exhaustion
- An inflated value in dispute and the cost demand resting on it
How we support you
We assess the claim asserted, draft a modified undertaking where appropriate, fend off unfounded demands and negotiate over costs and damages. Where it comes to an interim injunction, we represent you there as well.
A warning letter received?
Get in touch early, not on the last day of the deadline.
Get in touch nowFrequently asked questions
Can we simply ignore the warning letter?
That is inadvisable. If you do not react, an application for an interim injunction frequently follows. It may be granted without an oral hearing, and the costs then run well above those of settling matters out of court. Even an unfounded warning letter needs an answer, just a different one.
The deadline is very short. Do we have to meet it?
Short deadlines are usual and often tight. An extension is often achievable but has to be requested, and before the deadline expires. Letting it pass without a word forfeits the chance to end the matter out of court.
Can a competitor send us a warning letter over our privacy notice?
Yes. The Court of Justice of the European Union decided that on 4 October 2024 (C-21/23). Chapter VIII GDPR does not preclude national rules allowing competitors to proceed before the civil courts against breaches of the regulation on the ground of unfair commercial practices. The routes open to the supervisory authority and to the persons concerned remain alongside. The defence therefore runs on two levels, namely whether there is a data protection breach and whether it is also unfair.
What is a modified undertaking?
A version adjusted by you that covers only what is actually owed. Typical adjustments concern the reach of the prohibition, the absence of any admission on the legal position, and the contractual penalty, which can be left to a court to determine rather than fixed as an amount.