Thu, Jun. 10, 2004

Award of Counsel Fee

SK - Washington.   On May 6, 2004, the Supreme Court in Karlsruhe published its May 6, 2004 decision in case number I ZR 2/03, see also Sevriens, in German. It determines that an award of attorney fees is inappropriate where the attorney is the plaintiff and seeks to enforce a cease and desist order under unfair competition laws. Generally, counsel fees may be awarded a plaintiff in such matters where plaintiff is deemed to provide a public good or to work for the benefit of another party (Geschäftsführung ohne Auftrag (GoA)).

The GoA doctrine embodies principles of compensation and of providing a service to another on his behalf and beneficial to him, without any express instruction and is statutorily defined in §677 Civil Code (BGB). The Court pointed out that instructing an attorney for a warning of this kind is unwarranted when the plaintiff possesses adequate knowledge of the applicable competition law. Issues involving competition among attorneys do not raise difficult questions for members of the same profession. Therefore, hiring an attorney, especially oneself, and expecting an award of fees is illusory.

Christiane Krueger had discussed the business of cease-and-desist orders here.

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