Abmahnung
Encyclopedia
Abmahnung is the formal request by one person to another person to forthwith stop a certain behaviour.
If this formal request is made by an attorney
, then it is a cease-and-desist letter (but not a cease-and-desist order, which is called einstweilige Verfügung in German law
). It is used much more between private parties than a consent decree
is in the United States, since German law permits a wide range of parties to file suit
to bring an end to an observed wrong done to a third party, whereas in the United States the requirements for a party's standing
to sue are more restrictive (i.e. only the wronged party can sue).
In most cases, the law allows the party sending the letter to demand payment of legal costs associated with the sending of the letter. In theory, this allows anybody that observes a violation of a law that may be covered by an Abmahnung to hire an attorney, have a letter sent, and be reimbursed for the attorney's fees. In practice, a lawyer may do this without having been hired by a client who has been wronged, in essence searching for violators of covered laws and demanding payment from them for having found them. This abuse of the law has in recent years led to the so-called Abmahnwelle (-wave), as lawyers and copyright holders are trawling the internet searching for even minor and usually unintended violations of e.g. copyright law, with some lawfirms sending thousands of letter per year demanding payment.
If this formal request is made by an attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, then it is a cease-and-desist letter (but not a cease-and-desist order, which is called einstweilige Verfügung in German law
Law of Germany
The modern German legal system is a system of law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws as for example most regulations of the civil code were developed prior to the 1949 constitution...
). It is used much more between private parties than a consent decree
Consent decree
A consent decree is a final, binding judicial decree or judgment memorializing a voluntary agreement between parties to a suit in return for withdrawal of a criminal charge or an end to a civil litigation...
is in the United States, since German law permits a wide range of parties to file suit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
to bring an end to an observed wrong done to a third party, whereas in the United States the requirements for a party's standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to sue are more restrictive (i.e. only the wronged party can sue).
In most cases, the law allows the party sending the letter to demand payment of legal costs associated with the sending of the letter. In theory, this allows anybody that observes a violation of a law that may be covered by an Abmahnung to hire an attorney, have a letter sent, and be reimbursed for the attorney's fees. In practice, a lawyer may do this without having been hired by a client who has been wronged, in essence searching for violators of covered laws and demanding payment from them for having found them. This abuse of the law has in recent years led to the so-called Abmahnwelle (-wave), as lawyers and copyright holders are trawling the internet searching for even minor and usually unintended violations of e.g. copyright law, with some lawfirms sending thousands of letter per year demanding payment.