Infringement
due to bad
Organization.
Infringement
due to bad
Organization.
of
Is it possible to violate an injunction without knowing about it? What happens if a former managing director does not circumvent the non-competition clause of his former company himself, but through a friend? And how far does an injunction extend if a third party operates the website?
What was it all about?
A former shareholder and managing director of a company that sells event tickets was subject to a post-contractual non-compete clause after he left the company. This prohibited him from organizing the sale of event tickets or advertising events online himself or via companies in which he was a managing director or held a stake of more than two percent until November 2025. In April 2025, the Regional Court of Aachen issued a corresponding interim injunction by default judgment.
The company subsequently applied for the imposition of a fine as the former managing director had violated the injunction. The regional court imposed a fine of 5,000 euros. Both sides lodged an appeal. The former managing director wanted to avert the fine in full, while the company also wanted to enforce a fine for subsequent actions.
If you don’t make provisions, you have to pay
The Cologne Higher Regional Court rejected the Decision of 11.02.2026 – Ref. 6 W 77/25 and 6 W 78/25 both complaints.
Organizational fault even in the event of ignorance
The former managing director argued that he had not been aware of the injunction at the time of the infringements. However, the Higher Regional Court of Cologne did not accept this objection. Fault in the law on injunctions does not necessarily require the obligated party to have been aware of the specific prohibition. It is sufficient if he was avoidably unaware of it.
The decisive factor here was that the former managing director had already received a cease and desist letter by email in mid-March 2025. He therefore knew that a court injunction was imminent. Nevertheless, he did not ensure that he was able to safely receive mail sent to his registration address. Instead, he relied on a multi-stage forwarding chain. The landlord would notify his brother, who would then notify him. This case showed that such a chain has practical failures.
The court therefore affirmed organizational fault. Anyone who knows that they are threatened with court proceedings must ensure that they can be contacted. In addition, the former managing director had obtained knowledge of a summons to appear and the application for an injunction via his brother on 24.04.2025 without asking the court. The OLG also considered this to be his own fault.
If, in this situation, he relied on a multi-stage “reporting chain” […], which not only theoretically, but also – as the case shows – in practice showed various uncertainties in the reliable and timely forwarding of mail addressed to him, he is accused of organizational fault for this reason alone.
The limits of the preliminary injunction
The company had also referred to actions on 7 and 9 May 2025. According to the legal notice, the websites in question were operated by another company at that time, which belonged to a friend of the former managing director. The company saw this as a cover-up and also wanted a fine in this respect.
The Higher Regional Court of Cologne rejected this. An interim injunction can indeed be extended to so-called acts with a similar core area, i.e. to conduct that does not differ in essence from the prohibited act. However, this doctrine of the core area has clear limits: it only applies to what has already been examined in the discovery proceedings.
The titled prohibition was expressly based on relationships under company law: Management or participation of more than two percent. Whether de facto influence over a third-party company also falls under the prohibition was never examined in the discovery proceedings. Closing this gap is not the task of the injunction proceedings, but would have required a correspondingly broad formulation of the injunction from the outset.
What does this mean in practice?
Anyone who receives a cease and desist letter must expect that a temporary injunction will soon follow. From this moment on, it must be ensured that postal deliveries to the official registration address arrive reliably. Anyone who uses a longer chain of intermediaries bears the risk if this chain fails. Asking the court costs nothing and rules out later attempts at exculpation.
Creditors who obtain a temporary injunction should formulate the application for prohibition broadly and flexibly from the outset. If the prohibition is limited to formal relationships under company law, there is room for creative circumventions via de facto controlled third-party companies.
If you also want to cover such constellations, you must expressly include this in the application in the discovery proceedings. The court no longer examines whether the non-competition clause was lawful in terms of its content in the administrative remedy proceedings. Objections to the justification of the title – such as antitrust law arguments against the non-competition clause – are irrelevant there. They must be asserted in the discovery proceedings.
Conclusion
On the debtor side, the decision shows that ignorance of an interim injunction does not automatically exonerate the debtor. Anyone who does not make reliable arrangements for receipt after a cease and desist letter bears the risk of culpability themselves.
On the creditor side, it shows that an order is only as far-reaching as its wording and the facts on which it is based. If you want to exclude creative circumvention via third parties, this must be clearly formulated in the application.
Post-contractual non-compete clauses are a sharp sword that needs to be wielded with precision.
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