It is really unfortunate. Mr. M has just ordered a new batch of extremely stylish chair models (he has copied the design from a competitor's catalogue) for the Düsseldorf trade fair from his manufacturer in Indonesia. The moment he sets up his exhibition stand a lawyer materialises from seemingly nowhere and hands him a cease and desist letter in the name of his competitor. Furthermore the lawyer demands from Mr. M to sign a declaration of forbearance comprising the undertaking of a contractual penalty as well as to reimburse the competitor for the payment of - considerable - lawyer's fees. The competitor claims product piracy and copyright infringement. Alas, he is quite right to do so, because works of applied art, e.g. furniture, can enjoy protection by copyright law if certain legal requirements are met. In this case the extremely stylish chair is not only stylish, but a protected copyright work.

One-dimensional legal counselling would - as far as it goes, quite correctly - result in the advice that in this particular case Mr. M has infringed copyright and that without an immediate and sufficient declaration of forbearance there is the threat of an intermediary injunction by the court which would result in even higher costs. It would be better for Mr. M to get it all over with and to sign on the dotted line as well as to reimburse the competitor for his lawyer's fees. And, please, to pay his own lawyer's bill as he leaves.

Multidimensional counselling aims to find alternatives from the obvious. Quite often submitting to a court injunction is by far the lesser evil. The signing of a declaration of forbearance results in a competitors strong vigilance to find out about further infringements. Then the competitor can claim the contractual penalty comprised within the declaration - in fact the declaration and its acceptance constitute a contract! A competitor will not be as vigilant if an injunction was issued. In that case a possible fine will first have to be applied for in a special procedure and the fine is to be paid to the court - not to the competitor. In case of somewhat questionable claims it might be advisable to sign a declaration of forbearance but to refuse the reimbursement of lawyer`s fees. The opponent is free to then prove his claims in a principle trial about the costs only. This is not a very attractive prospect for opponent and his lawyer as the value of dispute is comparatively low for the complicated work involved. And maybe the opponent does not smell of roses either. This occurs very frequently in circumstances where competition and, thus, German Competition Law are involved. Opponent may refrain from persuing his claims if a blot on his escutcheon is pointed out to him via a kindly but firm vice versa cease and desist letter. Or the claims seem so absurd that one can contemplate an action for declaration of non-infringement.

Experienced counsels use their experience. This can also be your benefit!