The reference to a USB stick in the claim is permissible. This was clarified by the Federal Court of Justice in a recent ruling from 14.07.2022 (Ref. I ZR 97/21).
Digitalization is advancing – also in civil proceedings. According to the law (see Section 130a (1) ZPO), attachments to statements of claim or other pleadings may be submitted to the court as “electronic documents” subject to certain requirements. § Section 130a (1) ZPO reads:
“Preparatory pleadings and their annexes, applications and declarations to be submitted in writing by the parties as well as information, statements, expert opinions, translations and declarations by third parties to be submitted in writing may be submitted to the court as electronic documents in accordance with the following paragraphs.”
The problem is that the permission cited above is limited to the digital submission of objects that also exist or can be produced in written form. In reality, however, we are increasingly dealing with purely digital objects or facts. For this increasingly common constellation, the BGH has now provided valuable clarification for practical use.
In its judgment of 14.07.2022 (case no. I ZR 97/21), the Federal Court of Justice clarified that reference to a USB stick is also permitted in a claim that is to be enforced in the event of success. The BGH stated:
“The specificity of the application must also be examined ex officio in appeal proceedings by
(BGH, judgment of 16. December 2021 – I ZR 201/20,
GRUR 2022, 229 [juris para. 21] = WRP 2022, 318 – ÖKO-TEST III, mwN). According to
Section 253 (2) no. 2 ZPO, an application for an injunction – and according to Section 313 (1)
no. 4 ZPO a conviction based on it – must not be worded so vaguely that the subject matter of the dispute and the scope of the court’s power of review and decision (Section 308 (1) ZPO) are not clearly delineated, the defendant is therefore unable to defend itself exhaustively and the decision as to what it is prohibited from doing is ultimately left to the enforcement court (st. case law; see BGH, judgment of September 9, 2021 – I ZR 90/20, BGHZ 231, 38 [juris para. 19] – Influencer I, mwN). Sufficient certainty is usually given if reference is made to the specific infringing act and the claim, at least by referring to the claim, unambiguously indicates the characteristics of the challenged conduct in which the basis and the connecting factor for the infringement of competition and thus the injunction should lie (cf. BGH, judgment of November 8, 2018 – I ZR 108/17, GRUR 2019, 627 [juris para. 15]=WRP2019,731 – Deutschland-Kombi; decision of February 4, 2021 – I ZR79/20,K&R 2021, 333 [juris,para.12]).Accordingly, the Court of Appeal correctly assumed that
the reference to the USB stick submitted by the plaintiff as Annex K 1 to the files , which indisputably fully documents the telemedia offer complained of as a specific form of infringement, is sufficient to substantiate the plaintiff’s applications for injunctive relief.”
The ruling makes it clear in a welcome way that the digitization of civil proceedings does not stop at the submission of documents in the context of court proceedings.
§ Section 130a (1) ZPO does not help if the actual subject matter of the dispute in the proceedings is a digital product. In this case, it is simply not possible to dispense with a reference to a digital source outside the judgment (here: USB stick) in a judgment.
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