warning letter

Which translation, when

Why

Warning letter is the usual English label for the Abmahnung, and the rendering understates it, because the German instrument does far more than warn. In competition and intellectual property practice the entitled party writes to the infringer, sets out the infringement, requires it to be stopped and asks for a strafbewehrte Unterlassungserklärung, an undertaking to desist secured by a contractual penalty for any future breach. Section 13 Abs. 1 UWG makes this the normal route, directing the entitled party to warn before starting proceedings and to give the other side the chance to settle out of court; the provision says should rather than must, so a claimant may go straight to court, but he then carries the costs if the defendant admits the claim at once. Abs. 2 prescribes the contents of the letter, including who is asserting the claim, what infringement is alleged and whether reimbursement of expenses is demanded. The mechanism behind the undertaking is what a translation must convey. An injunction claim rests on the danger of repetition, and an infringement that has occurred establishes that danger; only an undertaking backed by a penalty removes it, so a recipient who merely promises to behave leaves the claim intact and can still be sued, while one who signs converts the dispute into a contractual relationship in which future breaches trigger the agreed penalty. Cost and abuse form the third layer. The necessary expenses of a justified warning are recoverable, but the legislature has repeatedly acted against warnings issued mainly to generate fees, through the restrictions of § 13 UWG, the bar on abusive assertion in § 8c UWG and the limits on contractual penalties in § 13a UWG. One false friend remains: in employment law the Abmahnung is an entirely different institute, the formal reprimand that normally precedes a conduct-based dismissal.

Typical mistakes

• An Abmahnung demands a penalty-backed undertaking rather than merely warning, so rendering it as a warning letter without explanation understates what is asked.
• Only a strafbewehrte Unterlassungserklärung removes the danger of repetition, so a plain promise to stop leaves the injunction claim alive.
• The employment-law Abmahnung is the reprimand preceding a dismissal, so the same German word must not be carried between the two fields.

What matters

Translating a German cease-and-desist letter for a foreign client: the text should name it an Abmahnung, explain the penalty-backed undertaking and its effect on the injunction claim, and set out the deadline and the costs demanded.

Examples