2025-05-19 - LD Munich - Dolby v. Roku - UPC_CFI_58/2025

If the obligation to bear the costs in the context of a decision under Rule 360 RoP depends on whether the defendant gave cause for action, the objective view of a person in the position of the claimant at the time the action was lodged must be taken into account. The question to be answered is whether the claimant could have assumed at that time that it would not be able to obtain justice without judicial assistance. A warning letter is not a prerequisite for the admissibility or merits of an application for provisional measures. The urgency of such an application cannot be denied solely on the grounds that the applicant failed to issue a warning letter beforehand. However, its absence may result in the applicant having to bear the costs if the respondent issues a cease-and-desist declaration immediately at the beginning of the proceedings (continuation of CoA, Order of 24 October 2024, CoA_2-2024, APL_83-2024 – Edwards/Meril). Even without a prior warning letter and despite a cease-and-desist declaration issued immediately after proceedings for provisional measures were initiated, the respondent must bear the costs if a prior warning letter was unnecessary because it would have been futile from the outset or because there was a risk that that the asserted right would have been definitively lost before a court decision was made. If the respondent has already initiated legal proceedings for the grant of an anti-suit injunction or anti-enforcement injunction, a warning letter by the applicant prior to an application for an anti-anti-suit injunction or anti-anti-enforcement injunction is generally dispensable, because it can be assumed that the respondent will not comply with it unless there are concrete indications that it will do otherwise.

The Munich Local Division issued a "no need to adjudicate"-decision regarding an application for provisional measures, ordering that the respondent of the application had to bear the costs for the proceedings despite the fact that they had immediately signed a cease-and-desist-letter following the application. The Court went into detail regarding the consequences of an action or application becoming void of purpose and the parties' behaviour to be considered when deciding on who has to bear the costs. The decision was published twice for two parallel proceedings.