Table of contents

1. 1

   A. Facts of the case

2. 41

   B. Admissibility

   1. 42

      I. Subject matter

   2. 43

      II. Time limit for lodging a constitutional complaint

   3. 47

      III. Standing

      1. 1. 48

            1. Standard

            1. 49

               a) Possibility of a violation of fundamental rights

            2. 50

               b) Individually, directly and presently affected

         2. 51

            2. Application of the law to the present case

            1. 52

               a) Scope of the right to equality of ‘arms’

               1. 53

                  aa) Original scope of application: criminal proceedings

               2. 55

                  bb) Limited applicability in the context of civil proceedings

               3. 58

                  cc) Basis of the decision

                  1. 59

                     (1) With regard to material fundamental rights

                  2. 60

                     (2) With regard to procedural fundamental rights

                  3. 61

                     (3) With regard to the right to equality of ‘arms’

                  4. 64

                     (4) Meaning of the term ‘resting on’ in the context of the right to equality of ‘arms’

                  5. 65

                     (5) Specific substantiation requirements

            2. 67

               b) Application of the law regarding the right to equality of ‘arms’

   4. 74

      IV. Exhaustion of remedies

   5. 83

      V. Recognised legal interest in bringing an action
      

      1. 84

         1. Standard

      2. 88

         2. Application of the law to the present case

         1. 89

            a) No recognised legal interest in the reversal of the decision

         2. 90

            b) No continuing recognised legal interest

3. 97

   C. Outcome of the Justices’ vote

R e a s o n s :

A. 

1

The constitutional complaint challenges an order of a Regional Court which, by way of a civil law preliminary injunction and without hearing the parties against whom the injunction was sought, ordered a limited liability company and its managing directors to refrain from making certain comparative advertising claims and from using certain EU trade mark-protected signs for unfair competition and trade mark law reasons. It centres on the question under which circumstances the claim of a violation of the right to equality of ‘arms’ can be asserted by way of a constitutional complaint.

I. 

2

1. a) A person who commits an act which is unlawful pursuant to § 3 of the Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG) may, if there is a risk of repetition, be subject to a cease-and-desist action by certain competitors in accordance with § 8(1) first sentence, (3) no. 1 of the Act against Unfair Competition. § 3(1) of the Act against Unfair Competition prohibits unfair commercial practices. These include, inter alia, comparative advertising claims if such a comparison is not objective within the meaning of § 6(2) no. 2 of the Act against Unfair Competition, takes advantage of or interferes with the reputation of a mark used by a competitor in accordance with § 6(2) no. 4 of the Act against Unfair Competition, or is disparaging or defamatory within the meaning of § 6(2) no. 5 of the Act against Unfair Competition.

3-4

[...]

5

b) In accordance with Art. 9(2) lit. c of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ EU, L 154 of 16 June 2017, p. 1; hereinafter: EU Trade Mark Regulation), the proprietor of an EU trade mark is entitled to prevent all third parties from using the trade mark in the course of trade in relation to goods or services without consent.

6

[...]

7

2. In accordance with §§ 935, 940 of the Code of Civil Procedure (Zivilprozessordnung – ZPO), the ordinary courts may grant injunctive relief to safeguard an existing situation or regulate a temporary situation with regard to a legal relationship that is in dispute. Injunctive relief which temporarily imposes an obligation to cease and desist may also be permissible (cf. Federal Court of Justice, Order of 11 October 2017 - I ZB 96/16 -, […]).

8

The party seeking injunctive relief is required to credibly show (glaubhaft machen) the basis for their claim to injunctive relief and in principle also the reason for seeking injunctive relief under civil law (§ 920(2), § 294 in conjunction with § 936 Code of Civil Procedure). However, if the preliminary injunction sought concerns the protection of claims to cease and desist in accordance with the Act against Unfair Competition or the Act on the Protection of Trade Marks and other Signs (Gesetz über den Schutz von Marken und sonstigen Kennzeichen – MarkenG) (hereinafter: Trade Mark Act), the reason for the injunctive relief – namely the need for urgency, which is a requirement for granting injunctive relief in accordance with §§ 935, 940 of the Code of Civil Procedure – is presumed (§ 12(1) of the Act against Unfair Competition, § 140(3) of the Trade Mark Act; cf. also Bundestag document (Bundestagsdrucksache – BTDrucks) 15/1487, p. 25; 19/2898, p. 109). The presumption of the need for urgency in § 140(3) of the Trade Mark Act may also be applicable in proceedings before the ordinary courts concerning EU trade marks in accordance with Art. 129(3) EU Trade Mark Regulation.

9

In the area of unfair competition law, there are frequently no main proceedings after preliminary injunction proceedings ([…]). In practice, the majority of those trade mark cases which are regarded as less legally complex are also fully resolved through the preliminary injunction proceedings (cf. Bundestag document 19/2898, p. 109). However, the party seeking injunctive relief and also, in accordance with the standards of § 926 in conjunction with § 936 of the Code of Civil Procedure, the party against whom the injunctive relief is sought, can apply for a resolution of the matter in main proceedings.

10

3. Furthermore, the Code of Civil Procedure contains provisions for particularly urgent cases – going beyond the level of urgency normally required for a decision in preliminary injunction proceedings – for all areas of law falling within its scope of application. Subject to the conditions in § 937(2) of the Code of Civil Procedure, an application for injunctive relief may be decided without an oral hearing. In unfair competition and trade mark law matters, this heightened level of urgency is not regarded as falling within the scope of the presumption of § 12(1) of the Act against Unfair Competition and § 140(3) of the Trade Mark Act ([…]).

11

[...]

12

a) If the ordinary court considers the issue to be urgent within the meaning of § 937(2) of the Code of Civil Procedure – beyond the level of urgency presumed under § 12(1) of the Act against Unfair Competition and § 140(3) of the Trade Mark Act – it must decide without an oral hearing (cf. Federal Court of Justice, Order of 7 May 2020 - V ZB 110/19 -, […]). In deciding whether the matter is urgent within the meaning of § 937(2) of the Code of Civil Procedure, the ordinary court has a margin of appreciation ([…]; from the perspective of constitutional law and in the context of the law of freedom of expression, Federal Constitutional Court, Orders of the Third Chamber of the First Senate of 30 September 2018 - 1 BvR 1783/17 -, para. 19 and of the First Chamber of the First Senate of 12 March 2024 - 1 BvR 605/24 -, para. 16).

13

In preliminary proceedings, the assessment of urgency is not made solely with reference to the temporal aspect. Relevant factors in the required balancing of interests by the ordinary courts also include the likelihood of the claim at issue being granted and the likely consequences on the parties ([…]).

14

In this context, it may be relevant whether, with the application for injunctive relief, the party seeking injunctive relief is only required to credibly show the facts giving rise to the claim for injunctive relief or whether they must also credibly show the absence of any defences and objections that might be expected in that particular case, as is generally required for a preliminary injunction – in any case where this is granted purely on the basis of the submissions of the party seeking injunctive relief (cf. Karlsruhe Higher Regional Court, Judgment of 27 May 1987 - 6 U 9/87 -, […]; Stuttgart Higher Regional Court, Order of 5 November 1997 - 2 W 78/97 -, […]).

15

In unfair competition and trade mark law, the party seeking injunctive relief will in many cases already be able to credibly show the facts required for a claim to cease and desist as well as a lack of expected defences and objections with the application for injunctive relief. This is particularly the case if the prohibition follows directly from the law ([…]) or the provision on prohibition – such as in the case of advertisements – is violated in a way that can be exhibited to the court ([…]). A level of urgency beyond the presumption pursuant to § 12(1) of the Act against Unfair Competition and § 140(3) of the Trade Mark Act also exists in certain cases because, due to the particular susceptibility of the interests involved to injury, the delays inevitably caused by conducting an oral hearing and the damages that frequently result therefrom would risk frustrating the purpose of the preliminary cease-and-desist order sought ([…]).

16

It is conceivable that, instead of an oral hearing, the party against whom injunctive relief is being sought may be involved in the preliminary injunction proceedings through the use of modern telecommunications, which did not exist at the time when the largely pre-constitutional § 937(2) of the Code of Civil Procedure was drafted. However, this might result in the necessity of granting an opportunity to reply outside the oral hearing in this regard, which would lead to further delays. Furthermore, particularly in the areas of unfair competition and trade mark law, the necessary familiarisation with the application for injunctive relief can often only be effectively achieved in written form.

17

A pre-emptive written defence against expected applications for injunctive relief lodged in the central caveat register (§ 945a Code of Civil Procedure; hereinafter: caveat) or a reply from the party against whom injunctive relief is being sought in response to a written pre-litigation warning notice may also be used to clarify the facts in preliminary injunction proceedings. The possibility of lodging a caveat established through § 945a of the Code of Civil Procedure, as well as an a contrario reading of § 940(4) of the Code of Civil Procedure, indicates that the legislator considers it to be possible for the ordinary courts to order a preliminary injunction in the field of unfair competition and trade mark law entirely without hearing the party against whom injunctive relief is being sought, as Art. 9(1) and (4) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ EU, L 195 of 2 June 2004, p. 16) provide for, inter alia, in trade mark law (cf. Bundestag document 16/5048, p. 28, 31).

18

b) A party against whom injunctive relief is ordered may lodge an objection under § 924(1) in conjunction with § 936 of the Code of Civil Procedure against a preliminary injunction. If an objection is raised, the ordinary court which issued the preliminary injunction order will then conduct an oral hearing and decide about the lawfulness of the measure initially ordered (§ 925(1) in conjunction with § 936 of the Code of Civil Procedure). It can confirm the preliminary injunction, either wholly or in part, or it can change or reverse it (§ 925(2) first half-sentence in conjunction with § 936 Code of Civil Procedure). If the preliminary injunction is found to have been unjustified from the outset, the party that sought the preliminary injunction is obligated, under § 945 of the Code of Civil Procedure, to compensate the party against whom injunctive relief was sought for any damages incurred through the enforcement of the measures ordered, as a result of providing security to avoid enforcement or in seeking a revocation of the measure imposed. Liability under § 945 of the Code of Civil Procedure of the party seeking injunctive relief does not require a finding of fault (cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 54, 76 <78>; Federal Court of Justice, Judgment of 13 March 2025 - IX ZR 201/23 -, […]).

19

4. As with a preliminary injunction that has been issued on the basis of an oral hearing from the outset, the decision on the objection can be appealed (cf. § 511 of the Code of Civil Procedure). There is no further legal remedy against the decision of the appeals court (cf. § 542(2) first sentence, § 574(1) second sentence of the Code of Civil Procedure; see further Bundestag document 15/1508, p. 22).

II. 

20

1. Complainant no. 1, a limited liability company, sells energy drink powders. Complainants no. 2 to 4 are its managing directors.

21

A competitor sent a written pre-litigation warning notice to complainant no. 1 and complainants no. 2 to 4 due to certain specified advertisements distributed by complainant no. 1 via the internet. Complainant no. 1 then contacted the competitor through the lawyer who later became its legal representative; a settlement was not reached. Apart from this contact, complainant no. 1 and complainants no. 2 to 4 did not react to the written pre-litigation warning notice and did not make declarations to cease and desist.

22

2. With the challenged order of the Regional Court of 2 October 2024, complainant no. 1 and complainants no. 2 to 4 were ordered, by way of preliminary injunction on the application of the competitor, to cease and desist in the course of trade in Germany, either directly or through third parties, the competitive practices of making certain specified comparative claims, depicting the competitor’s energy drinks in its advertising in a certain specified manner or making certain specified claims in relation thereto and/or using certain specified marks to identify drinks or letting such marks be used in the course of trade in the European Union. […]

23

The Regional Court ordered the preliminary injunction without hearing complainant no. 1 or complainants no. 2 to 4 on the application for injunctive relief.

24

3. a) On 13 November 2024, complainant no. 1 and complainants no. 2 to 4 lodged an objection to the order of the Regional Court. In its judgment of 19 December 2024, the Regional Court confirmed the preliminary injunction insofar as it had been issued against complainant no. 1. With regard to complainants no. 2 to 4, the Regional Court rejected the competitor’s application for a preliminary injunction and reversed the order of 2 October 2024. […]

25

b) After the announcement of the decision on the objection, complainant no. 1 and the applicant in the initial proceedings reached a settlement, which also included a so-called conclusive declaration by complainant no. 1, namely a declaration which recognised the preliminary injunction in the form after the decision on the objection as a resolution having the same legal effect as an enforceable title issued in main proceedings, waiving any further legal remedies available in preliminary injunction proceedings ([…]).

III. 

26

With their constitutional complaint, lodged on 14 November 2024 – prior to the decision on the objection being issued –, complainant no. 1 and complainants no. 2 to 4 seek a declaration that ‘[the order of the Regional Court violates their] right equivalent to a fundamental right to equality of ‘arms’ in accordance with Art. 3(1) in conjunction with Art. 20[3] of the Basic Law (Grundgesetz – GG)’. In their reasons for the constitutional complaint, which were supplemented and expanded upon by further submissions, they allege that the Regional Court violated their right to equality of ‘arms’ not only by ordering the preliminary injunction without an oral hearing, but also by not hearing complainant no. 1 and complainants no. 2 to 4 in any alternative ways. [...]

27-32

[...]

IV. 

33

[...]

V.

34

1. The Ministry of the Land Berlin for Justice and Consumer Protection (Senatsverwaltung für Justiz und Verbraucherschutz des Landes Berlin) and the applicant in the initial preliminary injunction proceedings submitted statements in the constitutional complaint proceedings.

35-39

[...]

40

2. […]

B.

41

The constitutional complaint is inadmissible. It is directed exclusively against the order of the Regional Court (I) and was timely lodged (II). Standing to lodge a constitutional complaint has been sufficiently substantiated by complainants no. 2 to 4, but not by complainant no. 1 (III). Complainants no. 2 to 4 have sufficiently substantiated the exhaustion of legal remedies before the ordinary courts (IV), but not their recognised legal interest in bringing the proceedings (V).

I. 

42

The constitutional complaint is directed exclusively against the order of the Regional Court, which is a subject matter that can be admissibly challenged in constitutional complaint proceedings in accordance with § 90(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Complainant no. 1 also chose not to extend the constitutional complaint to the decision made on the objection.

II. 

43-46

The constitutional complaint was timely lodged. [...]

III.

47

Standing to lodge a constitutional complaint with regard to the only right which is claimed to have been violated, the right to equality of ‘arms’ in accordance with Art. 3(1) in conjunction with Art. 20(3) of the Basic Law, has been sufficiently substantiated by complainants no. 2 to 4, but not complainant no. 1.

48

1. Pursuant to Art. 94(1) no. 4a of the Basic Law, § 90(1) of the Federal Constitutional Court Act, a constitutional complaint is only admissible if the complainants assert that their fundamental rights, or rights equivalent to fundamental rights, have been violated by an act of public authority (standing). This requires that both the possibility of a violation of fundamental rights or rights equivalent to fundamental rights (see a) below) and the fact that the complainants are individually, directly and presently affected (see b) below) are demonstrated in accordance with the substantiation requirements of § 23(1) second sentence and §92 of the Federal Constitutional Court Act (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 169, 130 <153 para. 34> – Hessian Protection of the Constitution Act; 170, 377 <395 para. 28> – Electricity price controls; 171, 71 <114 f. para. 103> – Parties to collective agreements and equal treatment).

49

a) Pursuant to § 23(1) second sentence, § 92 of the Federal Constitutional Court Act, the constitutional complaint must address the ordinary law which forms the subject matter of the complaint and include an analysis of the facts of the case under constitutional law. It must also set forth the possibility of a violation of fundamental rights or rights equivalent to fundamental rights in a sufficiently substantiated manner (cf. BVerfGE 140, 229 <232 para. 9>; 171, 177 <190 para. 37> – Policing costs for high-risk football matches; Federal Constitutional Court, Order of the First Senate of 1 October 2025 - 1 BvR 2428/20 -, para. 47 – Disruptive counter-protest). If the constitutional questions raised by the constitutional complaint have already been addressed in the case-law of the Federal Constitutional Court, the alleged violation of fundamental rights or rights equivalent to fundamental rights must be substantiated with references to the standards developed therein (cf. BVerfGE 140, 229 <232 para. 9>; 153, 74 <137 para. 104> – Unified Patent Court; 171, 177 <190 para. 37>; Federal Constitutional Court, Order of the First Senate of 1 October 2025 - 1 BvR 2428/20 -, para. 47). If the constitutional complaint challenges a decision of the ordinary courts, it must be set forth that the decision rests on the application of unconstitutional laws or amounts to a specific violation of constitutional law, or the prohibition of arbitrariness, in the application of ordinary law (cf. BVerfGE 171, 177 <190 para. 37> with further references; Federal Constitutional Court, Order of the First Senate of 1 October 2025 - 1 BvR 2428/20 -, para. 47).

50

b) The complainants must also set forth, in accordance with § 23(1) second sentence, § 92 of the Federal Constitutional Court Act, that they are individually, presently and directly affected by the challenged act of public authority. The complainants are individually affected if they are adressed by the provision, the challenged judgment or, in exceptional circumstances, the individual measure. The complainants are presently affected if they are already or still affected by the challenged act of public authority. In this regard, the relevant point in time is the time at which the constitutional complaint is lodged. Being directly affected requires that the interference with the legal position of the complainant is not only caused by some further legal act or depends upon such an act being issued (cf. BVerfGE 140, 42 <57 ff. para. 55 ff.>; 159, 355 <377 para. 31 f.> – Federal pandemic emergency brake II (school closures)).

51

2. Measured against these standards and with reference to the specific guarantees of the right to equality of ‘arms’ that are applicable in the present case (see a) below), complainant no. 1 have not sufficiently substantiated the possibility of a violation of its right to equality of ‘arms’ pursuant to Art. 3(1) in conjunction with Art. 20(3) of the Basic Law; however, complainants no. 2 to 4 sufficiently substantiated the possibility of such a violation as well as the fact that they are individually, directly and presently affected pursuant to the requirements laid down in § 23(1) second sentence, § 92 of the Federal Constitutional Court Act (see b) below).

52

a) The right to equality of ‘arms’, initially recognised in the context of criminal proceedings (see aa) below), has a different scope in the context of civil proceedings (see bb) below). In civil proceedings at least, a violation of the right to equality of ‘arms’ is in principle only possible if the ordinary court decision which is challenged by the constitutional complaint rests on the alleged failure to sufficiently respect the right to equality of ‘arms’ (see cc) below).

53

aa) In criminal proceedings, the right to equality of ‘arms’ guarantees an equality of ‘arms’ between the prosecution and the accused (cf. BVerfGE 110, 226 <253>). This does not mean, however, that procedural differences regarding the scope of action available to the public prosecution office and the defence based on the roles allocated to each side must be balanced in every respect; rather, it is possible to differentiate in view of the special role of the public prosecution office, which has an obligation to be objective. It is primarily for the legislator to determine which specific procedural rights and assistance individuals charged with a criminal offence should be granted and what form these rights should take. It is then up to the ordinary courts to make this determination in the individual cases – within the boundaries of the law – as part of their duty to interpret and apply the law (cf. BVerfGE 133, 168 <200 para. 59>).

54

This also corresponds to the requirements of a fair trial pursuant to Art. 6(1) European Convention on Human Rights (ECHR). According to the case law of the European Court of Human Rights, Art. 6(1) ECHR guarantees an equality of ‘arms’ between the parties involved in court proceedings by requiring, inter alia, that a party must be informed whenever observations are filed by another party and must be given a real opportunity to comment thereon (cf. ECtHR, Stollenwerk v Germany, Judgment of 7 September 2017, no. 8844/12, § 37).

55

bb) In civil proceedings, the guarantees of the right to equality of ‘arms’ only apply with a modified scope of protection. The ordinary procedural law applicable in civil proceedings features some significant differences compared to the procedural law applicable in criminal proceedings with relevance for the scope and contents of the right of equality of ‘arms’. It primarily serves to resolve private legal disputes between parties that are on an equal footing.

56

In the context of civil proceedings, the right to equality of ‘arms’, as a manifestation of the general guarantee of the right to equality (Art. 3(1) of the Basic Law) and the principle of the rule of law (Art. 20(3) of the Basic Law), guarantees that parties have equivalent procedural positions in court. To the extent provided for under the code of procedure, parties to the proceedings are to be accorded equal opportunities to make use of all relevant instruments in substantiating their claim and to assert, autonomously, all defences necessary to defend against any claims made by the opposing party. This right corresponds to the obligation of the court to preserve the equality of the parties’ positions by conducting the proceedings objectively and fairly, by being prepared to use and weigh the submissions made by each party in an unbiased manner through the impartial application of the law and by correctly fulfilling all other procedural obligations towards all parties to the proceedings (cf. BVerfGE 52, 131 <156 f.>; 117, 163 <185>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 28 December 2023 - 1 BvR 2033/23 -, para. 19). Anyone who has the legal ability to be party to court proceedings in accordance with the applicable code of procedure can invoke the right to equality of ‘arms’ (cf. on Art. 101(1) second sentence, Art. 103(1) of the Basic Law BVerfGE 21, 362 <373>; 163, 363 <422 para. 111> – EPO; each with further references). Generally, the specific content of the right to equality of ‘arms’ in civil proceedings is determined by the applicable code of procedure. The interpretation of the provisions of the code of procedure is in principle the task of the ordinary courts; the Federal Constitutional Court only conducts a limited review in this regard (cf. BVerfGE 89, 28 <35 f.>).

57

This also corresponds to the requirements of a fair trial established by Art. 6(1) ECHR in this regard. According to the case-law of the European Court of Human Rights, the principle of equality of ‘arms’ in civil proceedings derived from Art. 6(1) ECHR requires that the parties must each be afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage vis-à-vis their respective opponent (cf. ECtHR, Dombo Beheer B.V. v. The Netherlands, Judgment of 27 October 1993, no. 14448/88, § 33; Schaefer v. Germany, Decision of 4 September 2007, no. 14379/03, […]). Whether the scope of the right to equality of ‘arms’ for preliminary injunction proceedings in civil law – perhaps with regard to the purpose of effectively safeguarding private rights on a preliminary basis or effectively regulating the preliminary legal state – must be limited or adjusted further (cf. BVerfGE 9, 89 <96 ff.>) need not be decided here.

58

cc) In civil proceedings at least, a violation of the right to equality of ‘arms’ is in principle only possible if the ordinary court decision which is challenged through the constitutional complaint rests on the alleged failure to sufficiently respect the right to equality of ‘arms’. The requirement that the challenged decision within the meaning of § 95(2) of the Federal Constitutional Court Act rests on the alleged violation of a fundamental right or a right equivalent to a fundamental right generally has relevance in the context both of material fundamental rights (see 1) below) and procedural fundamental rights (see 2) below). The same applies in principle to the right to equality of ‘arms’ with regard to civil procedure; there is no apparent reason for deviating from this requirement in case of preliminary injunction proceedings in the area of unfair competition and trade mark law (see 3) below). With regard to the term ‘resting on’ and its relevance for the right to equality of ‘arms’ in civil proceedings (see 4) below), specific substantiation requirements derive from § 23(1) second sentence, § 92 of the Federal Constitutional Court Act insofar as a violation of the right to equality of ‘arms’ in the form of the lack of an opportunity to be heard in ordinary courts proceedings is alleged (see 5) below).

59

(1) In principle, a violation of a material fundamental right through a court decision within the meaning of § 95(2) of the Federal Constitutional Court Act requires that the court’s decision, after the exhaustion of all legal remedies in accordance with § 90(2) of the Federal Constitutional Court Act, rests on the failure to sufficiently respect the applicable fundamental right. This is the case if it cannot be ruled out that, had the material fundamental right been sufficiently respected, a decision that is more favourable to the complainant would have been reached (cf. BVerfGE 103, 142 <163>).

60

(2) In principle, the violation of a procedural fundamental right through a decision by the ordinary courts also requires that the decision rests on the failure to sufficiently respect the applicable procedural fundamental right (cf. on Art. 19(4) of the Basic Law BVerfGE 31, 364 <368>; 129, 1 <37>; on Art. 101(1) second sentence of the Basic Law BVerfGE 96, 68 <86>; on Art. 103(1) of the Basic Law BVerfGE 28, 17 <19 f.>; 66, 155 <175>; 72, 122 <132>; 91, 1 <25 f.>; 112, 185 <206>). A decision rests on an alleged violation only if it cannot be ruled out that, had the complainant’s right to be heard been adequately respected, the ordinary court would have assessed the facts of the case or a key legal aspect differently or the decision as a whole would have been more favourable to the complainant (cf. BVerfGE 89, 381 <392 f.>; 112, 185 <206>). Consequently, the substantiation requirements of § 23(1) second sentence, § 92 Federal Constitutional Court Act in case of an alleged violation of Art. 103(1) of the Basic Law are in principle only met if the complainant shows what the complainant would have submitted if the right to be heard had been adequately observed (cf. BVerfGE 28, 17 <20>; 72, 122 <132>; 91, 1 <25 f.>; 112, 185 <206>). This also applies if the violation of the right to be heard is alleged to have taken place in preliminary proceedings before the ordinary courts (cf. BVerfGE 66, 155 <175>).

61

(3) According to the relevant Senate case-law, the same applies in principle to the right to equality of ‘arms’ in civil proceedings. A violation of the right to equality of ‘arms’ is in principle only possible if the ordinary court decision which is challenged by the constitutional complaint rests on the alleged failure to sufficiently respect the right to equality of ‘arms’ (cf. BVerfGE 52, 131 <156 f.>; although arguably otherwise Federal Constitutional Court, Order of the Second Chamber of the First Senate of 24 March 2022 - 1 BvR 2000/21 -, para. 9; in the context of the law of freedom of expression Federal Constitutional Court, Orders of the Second Chamber of the First Senate of 3 June 2020 - 1 BvR 1246/20 -, para. 12 and of 11 January 2022 - 1 BvR 123/21 -, para. 29 and of the First Chamber of the First Senate of 10 November 2022 - 1 BvR 1941/22 -, para. 16).

62

Nor does the principle of the rule of law (Art. 20(3) of the Basic Law), which underlies the right to equality of ‘arms’, generally require any protection for parties to court proceedings beyond the notion that the decision rests on the alleged violation. There is no right to make a statement for its own sake and regardless of its relevance (cf. on Art. 103(1) of the Basic Law BVerfGE 86, 133 <144>; 107, 395 <410>). Moreover, this is not an unfamiliar concept within the legal order. For example, in accordance with § 46 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG), an administrative act that is not rendered void by § 44 of the Administrative Procedure Act cannot be reversed solely due to a violation of procedural requirements if it is evident that the violation did not impact the decision on the merits. Within the scope of application of § 46 of the Administrative Procedure Act, a procedural error is only relevant if, under the circumstances of the case, there is a real possibility that a different decision would have been reached if the procedural error had not occurred (cf. Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 144, 44 <55 para. 34>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 24 October 2017 - 1 BvR 1026/13 ‑, para. 46).

63

There are no apparent reasons to deviate from the requirement that the decision must rest on the alleged error with respect to the right to equality of ‘arms’ in preliminary injunction proceedings in the area of unfair competition and trade mark law.

64

(4) The ordinary court decision challenged by the constitutional complaint rests on a violation of the right to equality of ‘arms’ if it cannot be ruled out that, had the ordinary court ensured the equivalence of the parties’ procedural position, it would have assessed the facts of the case or a key legal aspect differently or the decision as a whole would have been more favourable to the complainant (cf. BVerfGE 52, 131 <156 f.>; 112, 185 <206>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 28 December 2023 - 1 BvR 2033/23 -, para. 19).

65

(5) If the constitutional complaint alleges a violation of the right to equality of ‘arms’ due to the lack of an opportunity to be heard in ordinary courts proceedings, the requirements for setting forth the claim that the alleged violation forms the basis of the challenged decision in accordance with the substantiation requirements of § 23(1) second sentence, § 92 of the Federal Constitutional Court Act are comparable to those in the case of an alleged violation of the right to be heard (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 28 December 2023 - 1 BvR 2033/23 -, para. 20). In principle, these substantiation requirements are only met if the complainant shows what the complainant would have submitted, in a way that would have been admissible under the applicable procedural law, if the right to equality of ‘arms’ had been observed (cf., for example, § 294(2) in conjunction with § 920(2), § 936 ZPO; see on this Federal Court of Justice, Judgment of 2 November 1988 - IVb ZR 109/87 -, […]) (see on this para. 60 above).

66

A relaxation of the substantiation requirements under § 23(1) second sentence, § 92 Federal Constitutional Court Act regarding the requirement that the decision rest on the alleged violation of the right to equality of ‘arms’ in preliminary injunction proceedings in the area of unfair competition and trade mark law could only be considered in exceptional cases. The substantiation requirements may by exception be relaxed in cases of the right to be heard in accordance with Art. 103(1) of the Basic Law if the violation of the right to be heard consists of the continuous withholding of a statement obtained in the proceedings before the ordinary courts (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 15 November 2010 - 2 BvR 1183/09 -, para. 31) or the failure to conduct an oral hearing that is required under the applicable ordinary law before a decision that is not appealable before the ordinary courts (cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 25 June 2015 - 1 BvR 367/15 -, para. 9). It need not be decided here whether comparable exceptions may – which does not appear to be unlikely – be transferable to the substantiation requirements with regard to the fact that the decision rests on the alleged violation of the right to equality of ‘arms’. [...]

67

b) Based on these standards, complainant no. 1 did not sufficiently substantiate that the order of the Regional Court, which is the only decision challenged here, rests on the alleged violation of the right to equality of ‘arms’, as is required (see aa) below). Conversely, complainants no. 2 to 4 did sufficiently substantiate this claim and the other elements required to show the possibility of a violation of the right to equality of ‘arms’, as well as the fact that they were individually, directly and presently affected (see bb) below).

68

aa) Complainant no. 1 challenges the failure of the Regional Court to provide an opportunity to be heard before it made the order in the preliminary injunction proceedings. Regarding the requirement that the ordinary court decision must rest on the alleged violation, the constitutional complaint asserts with regard to complainant no. 1, referring to Chamber decisions of the Federal Constitutional Court – and contrary to the applicable Senate case-law (see on this para. 61 above) – that for a violation of the right to equality of ‘arms’ it is not decisive that a different decision on the merits would have been expected had the Regional Court observed all procedural requirements. In this regard, the constitutional complaint does not build upon the reasoning for the objection as filed in the ordinary court proceeding against the order of the Regional Court, nor does it make reference to it.

69

In particular, therefore, there is a lack of substantiation, required under the relevant Senate case-law, that it cannot be ruled out that, had the Regional Court ensured the equivalence of the parties’ procedural position by granting an opportunity to make a statement (the lack of which is being challenged here) in the preliminary injunction proceedings prior to making the order, it would have assessed the facts of the case or a key legal aspect differently or the decision as a whole would have been more favourable to complainant no. 1.

70

Furthermore, complainant no. 1 does not set forth what it would have submitted had it been given sufficient opportunity to make a statement. This was necessary, however, because the sole basis for its claim of a violation of the right to equality of ‘arms’ is the lack of an opportunity to make a statement in the proceedings before the ordinary courts (see para. 65 above). To the extent complainant no. 1 refers to Chamber decisions of the Federal Constitutional Court, these decisions do not, pursuant to the distribution of competencies between the Senates and the Chambers of the Federal Constitutional Court (cf. §§ 93b, 93c of the Federal Constitutional Court Act), give rise to a different standard than the applicable Senate case-law (cf. Bundestag document 12/3628, p. 13; […]). Moreover, not all of the Chamber decisions actually dispense with the requirement that the ordinary court decision must rest on the alleged violation with regard to the right to equality of ‘arms’ (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 28 December 2023 - 1 BvR 2033/23 -, para. 19 f.). Complainant no. 1 also does not sufficiently substantiate the reasons why, in such a situation, the referenced Chamber decisions should lead to a different standard in the area of unfair competition and trade mark law from the applicable Senate case-law, which requires in principle that the decision of the ordinary courts challenged with the constitutional complaint rests on failure to sufficiently observe the right to equality of ‘arms’ (see para. 61 above).

71

bb) In contrast, the substantiation requirements pursuant to § 23(1) second sentence, § 92 of the Federal Constitutional Court Act for the alleged violation of the right to equality of ‘arms’ are met with regard to complainants no. 2 to 4.

72-73

[...]

IV. 

74

Complainants no. 2 to 4 have sufficiently substantiated the exhaustion of legal remedies before the ordinary courts as required by § 90(2) first sentence of the Federal Constitutional Court Act.

75

1. Pursuant to § 90(2) first sentence of the Federal Constitutional Court Act, a constitutional complaint is in principle only admissible once all legal remedies have been exhausted. During proceedings before the ordinary courts, a decision within the meaning of § 95(2) of the Federal Constitutional Court Act is comprehensively assessed with regard to its compatibility with fundamental rights, rights equivalent to fundamental rights, law and justice (cf. Art. 1(3), Art. 20(3) of the Basic Law). According to the distribution of competencies under the Basic Law, it is the ordinary courts which are first tasked with safeguarding and enforcing fundamental rights and rights equivalent to fundamental rights in this regard (cf. BVerfGE 68, 376 <380>; 73, 322 <327>; 96, 27 <40>; 112, 50 <61>). Violations of fundamental rights or rights equivalent to fundamental rights that occur in proceedings before the ordinary courts are in principle to be remedied by the ordinary courts (cf. BVerfGE 68, 376 <380>; 73, 322 <327>; 107, 395 <410>). Specifically, in case of violations of procedural fundamental rights, these are in principle remedied in the proceedings before the ordinary courts when that part of the proceedings in which the error occurred is later carried out correctly (cf. BVerfGE 5, 22 <24>; 8, 184 <185>; 19, 93 <99 f.>; 58, 208 <222>). Moreover, through a comprehensive prior examination of the allegations by the ordinary courts, the Federal Constitutional Court is presented a case with underlying facts that have been reviewed, as a rule, at several instances and is informed as to the ordinary courts’ assessment of the case and their legal views (cf. BVerfGE 8, 222 <227>; 68, 376 <380>; with regard to the principle of subsidiarity more broadly see also BVerfGE 79, 1 <20>; 86, 382 <386 f.>; 114, 258 <279>).

76

For the constitutional complaint against a decision within the meaning of § 95(2) of the Federal Constitutional Court Act, the legal remedies available in case of an alleged violation of a fundamental right, or a right equivalent to fundamental rights, by public authority within the meaning of § 90(2) first sentence of the Federal Constitutional Court Act are those provided for in the relevant code of procedure. This includes any recourse to the ordinary courts that is provided for in statute and is not evidently inadmissible (cf. BVerfGE 1, 13 <14>; 8, 222 <225 f.>; 67, 157 <170>; 68, 376 <379 f.>; 78, 320 <328>; 122, 190 <203>; Federal Constitutional Court, Order of the First Senate of 1 October 2025 - 1 BvR 2428/20 -, para. 58). Before submitting a constitutional complaint, a complainant must exhaust all instances available to them under the respective rules of procedure (cf. BVerfGE 68, 376 <380>; Federal Constitutional Court, Order of the First Senate of 1 October 2025 - 1 BvR 2428/20 -, para. 58). So long as the complainant can still call upon the ordinary courts to remedy the decision that they claim results in a violation of fundamental rights, or rights equivalent to fundamental rights, within the meaning of § 95(2) of the Federal Constitutional Court Act, all legal recourse has not been exhausted (cf. BVerfGE 8, 222 <225 f.>).

77

If the initial objective of remedying a decision becomes moot, the ordinary courts must then determine whether there remains a legal interest in a (retrospective) determination of the legal situation, with due regard to Art. 19(4) of the Basic Law. If, in the individual case, there is a special interest that merits protection with regard to such a determination, a legal interest in bringing proceedings before the ordinary courts can remain for constitutional reasons, provided that the relevant code of procedure offers a legal remedy. In particular, this can be the case if the proceedings before the ordinary courts may serve to counteract a risk of repetition or to remedy persisting detrimental consequences of an interference that itself has ended. This can also be the case if there has been a serious interference with fundamental rights. Among these are first and foremost those interferences with fundamental rights for which the Basic Law requires prior judicial authorisation (cf. BVerfGE 96, 27 <39 f.>; 104, 220 <231 ff.>; 117, 244 <268 f.>). In all of these cases, exhaustion of the available legal remedies requires not only that the available legal remedies have been lodged, but also that the ordinary courts have reached their decision (see para. 79 below).

78

The exhaustion of legal remedies in respect to preliminary proceedings before the ordinary courts in principle includes, at least, all the legal remedies in preliminary proceedings provided for in the relevant code of procedure (cf. BVerfGE 69, 315 <339 f.>; 75, 318 <325>; 79, 275 <278 f.>; but differently Federal Constitutional Court, Orders of the First Chamber of the First Senate of 18 September 2023 - 1 BvR 1728/23 -, para. 7 and of 28 September 2023 - 1 BvR 1740/23 -, para. 8; in the context of press law and the law of freedom of expression Federal Constitutional Court, Orders of the Third Chamber of the First Senate of 30 September 2018 - 1 BvR 1783/17 -, para. 10, of the Second Chamber of the First Senate of 11 January 2022 - 1 BvR 123/21 -, para. 29 and of the First Chamber of the First Senate of 10 November 2022 - 1 BvR 1941/22 -, para. 16 and of 12 March 2024 - 1 BvR 605/24 -, para. 12). This also applies, at least in the area of unfair competition and trade mark law, to preliminary injunctions issued by the ordinary courts in civil proceedings without an oral hearing. With regard to these orders, § 924 in conjunction with § 936 of the Code of Civil Procedure initially provides for the opportunity to raise an objection to the ordinary court which made the order, which then must decide based on an oral hearing (cf. § 924(2) second sentence, § 925(1) in conjunction with § 936 Code od Civil Procedure). Lodging an objection in accordance with § 924 of the Code of Civil Procedure creates, in particular, an opportunity to make good for the omission of not hearing the party against whom injunctive relief was sought, but also permits any violations of procedural fundamental rights that have occurred in the proceedings before the ordinary courts to be remedied by repeating the part of the proceedings in which the error occurred and carrying it out correctly (cf. BVerfGE 9, 89 <98>). At the same time, the objection may lead to the reversal of the order with effect ex tunc (cf. Federal Court of Justice, Judgment of 10 July 2014 - I ZR 249/12 -, […]).

79

All legal remedies before the ordinary courts have only been exhausted once the available legal remedies have been lodged and decided upon (cf. BVerfGE 1, 13 <14>). § 90(2) first sentence of the Federal Constitutional Court Act does not, however, preclude a decision by the Federal Constitutional Court if the legal remedies before the ordinary courts were not yet exhausted at the time when the constitutional complaint was lodged, but were subsequently exhausted by the time the Federal Constitutional Court reached its decision (cf. BVerfGE 2, 105 <109>; 54, 53 <66>; […]).

80

Pursuant to § 90(2) second sentence of the Federal Constitutional Court Act, however, the Federal Constitutional Court may decide on a constitutional complaint which has been lodged prior to the exhaustion of all legal remedies before the ordinary courts if the constitutional complaint is of general significance or if the complainant were to suffer a severe and unavoidable disadvantage if they were obligated to seek a legal remedy before the ordinary courts first. This requires that the complainant has either sought a legal remedy or can still seek a legal remedy at the time of the decision of the Federal Constitutional Court (cf. BVerfGE 11, 244; 22, 349 <354>; 56, 54 <68 f.>). The fact that the ordinary court decision has become enforceable, which occurs with the finality of the decision at the latest, in itself does not constitute a disadvantage within the meaning of § 90(2) second sentence of the Federal Constitutional Court Act (cf. BVerfGE 94, 166 <189, 211 ff., 229>; 107, 395 <413 f.>); in this regard, decisions rendered in preliminary injunction proceedings in civil law are no different from decisions rendered by the ordinary courts in the main proceedings.

81

The exhaustion of legal remedies before the ordinary courts or, alternatively, the fact that the requirements of § 90(2) second sentence of the Federal Constitutional Court Act are met, must be sufficiently substantiated, if not evident, in the constitutional complaint under § 23(1) second sentence, § 92 of the Federal Constitutional Court Act (cf. BVerfGE 112, 304 <314 f.>).

82

2. By these standards, complainants no. 2 to 4 have sufficiently substantiated that the requirements of § 90(2) first sentence of the Federal Constitutional Court Act are met. At the point in time in which the constitutional complaint was lodged, the complainants had submitted an objection against the order of the Regional Court, although the Regional Court had not yet decided on the continued validity of the preliminary injunction. However, the Regional Court reversed the order in the decision on the objection of 19 December 2024, insofar as that order concerned complainants no. 2 to 4 (see on this para. 24 above). In this way, they successfully exhausted the legal remedies available to them under the Code of Civil Procedure with a favourable decision on the merits.

V. 

83

Complainants no. 2 to 4 failed to sufficiently substantiate that they have a recognised legal interest.

84

1. The admissibility of a constitutional complaint against a decision within the meaning of § 95(2) of the Federal Constitutional Court Act in principle requires that there is a recognised legal interest in the reversal of the decision. This recognised legal interest must still exist at the time the Federal Constitutional Court reaches its decision (cf. BVerfGE 50, 244 <247>; 81, 138 <140>; 146, 294 <308 f. para. 24>; 159, 223 <273 para. 98> – Federal pandemic emergency brake I <curfews and contact restrictions>; Federal Constitutional Court, Order of the First Senate of 16 December 2025 - 1 BvR 1863/23 -, para. 25 – Preclusive effect of denied approval of a drug).

85

If there is no or no longer a decision that can be reversed or if the challenged decision no longer burdens the complainant, a continuing recognised legal interest, now in an isolated declaration in accordance with § 95(1) first sentence of the Federal Constitutional Court Act that the decision violated the fundamental rights or rights equivalent to fundamental rights of the complainant, may be sufficient under exceptional circumstances (cf. BVerfGE 6, 386 <388 s.>; 50, 244 <247>; 81, 138 <140>; 146, 294 <308 f. para. 24>). In particular, this may be the case if there is no other opportunity to clarify a fundamentally important question of constitutional law and the alleged interference with fundamental rights appears particularly severe, or if there is reason to fear the repetition of the same or a comparable decision specifically vis-à-vis the complainant or if the decision that has been revoked or has become moot continues to adversely affect the complainant (cf. BVerfGE 81, 138 <140>; 91, 125 <133>; 146, 294 <309 para. 24>; 159, 223 <273 para. 98>). Furthermore, a recognised legal interest may also continue to exist if a particularly severe and consequential interference with fundamental rights is at issue and the direct impact of the challenged decision occurs in such a short period of time that it would hardly be feasible, given the regular course of proceedings, to obtain a timely decision from the Federal Constitutional Court (cf. BVerfGE 81, 138 <140 f.>; 146, 294 <309 para. 24>; 148, 267 <279 para. 28>) or where the complainant has a demonstrated interest in rehabilitation in terms of restoring the complainant’s reputation (Rehabilitierungsinteresse) (cf. BVerfGE 148, 267 <279 para. 28>).

86

In this context, the risk of repetition must at least also exist specifically vis-à-vis the complainant. Such a risk of repetition only exists if there is reason to fear the repetition of the same or a comparable decision also vis-à-vis the complainant individually (cf. BVerfGE 10, 302 <308>; 16, 119 <121 f.>; 21, 139 <143>; 50, 244 <253>; 56, 99 <106>; 81, 138 <141 f.>; but differently Federal Constitutional Court, Orders of the Second Chamber of the First Senate of 27 July 2020 - 1 BvR 1379/20 -, para. 10, of 30 July 2020 - 1 BvR 1422/20 -, para. 15 and of 22 January 2021 - 1 BvR 2793/20 -, para. 14; in the context of press law and of the law of freedom of expression, Federal Constitutional Court, Orders of the Second Chamber of the First Senate of 4 February 2021 - 1 BvR 2743/19 -, para. 17 and of 1 December 2021 - 1 BvR 2708/19 -, para. 21 and the First Chamber of the First Senate of 25 August 2023 - 1 BvR 1612/23 -, para. 18).

87

If its existence is not evident, the complainant must sufficiently substantiate the complainant’s recognised legal interest in the constitutional complaint under § 23(1) second sentence, § 92 of the Federal Constitutional Court Act (cf. BVerfGE 129, 78 <93>; 171, 366 <386 f. para. 39> – Act for the Financial Stabilisation of the Statutory Health Insurance System).

88

2. According to these standards, complainants no. 2 to 4 have failed to sufficiently substantiate their recognised legal interest. A recognised legal interest in the reversal of the order of the Regional Court no longer exists, as that decision has since been reversed in the decision on the objection (see (a) below). A continuing recognised legal interest, now in an isolated declaration of the Federal Constitutional Court that the order violated their right to equality of ‘arms’, has not been sufficiently substantiated by complainants no. 2 to 4 (see (b) below).

89

a) A recognised legal interest in the reversal of the order of the Regional Court, which is the only decision challenged here, does not exist at the relevant point in time, namely the time of the decision of the Federal Constitutional Court. After the exhaustion of all legal remedies before the ordinary courts as required under § 90(2) first sentence of the Federal Constitutional Court Act (see para. 75 ff., above), there is no longer a decision that can be reversed. Since the constitutional complaint was lodged, the order of the Regional Court was reversed in the decision on the objection. That complainants no. 2 to 4 are nevertheless still burdened by that initial, now reversed, order of the Regional Court has not been set forth and is also not otherwise apparent. Whether the claim made by complainants no. 2 to 4 in the main proceedings of the constitutional complaint was initially aimed at reversing the order of the Regional Court need not be decided here.

90

b) Whether a continuation of the recognised legal interest requires the initial existence of a recognised legal interest need not be decided here (see (aa) below). A continuing recognised legal interest was not sufficiently substantiated (see (bb) below).

91

aa) Whether a continuation of the recognised legal interest requires the initial existence of a recognised legal interest need not be decided here. The initial existence of a recognised legal interest is in question in the present case, as complainants no. 2 to 4 only exhausted the legal remedies before the ordinary courts in accordance with § 90(2) first sentence of the Federal Constitutional Court Act with the reversal of the initial order through the decision on the objection with a favourable decision on the merits, meaning that, before that point in time, their constitutional complaint did not meet the requirements of § 90(2) first sentence of the Federal Constitutional Court Act (see on this paras. 77, 79, 81 above). Under these circumstances, exceptionally, there might initially have been a recognised legal interest if the prerequisites of §90(2) second sentence of the Federal Constitutional Court Act were met before all legal remedies before the ordinary courts had been exhausted (see on this para. 80 above).

92

bb) A continuing recognised legal interest due to a particularly severe interference with fundamental rights that has fundamental constitutional significance or due to a particularly severe and consequential interference with fundamental rights (see (1) below) or due to persisting detrimental consequences of the challenged decision that has since been reversed (see (2) below) has not been sufficiently substantiated by complainants no. 2 to 4. A continuing recognised legal interest due to a risk of repetition is also not ascertainable from their submissions (see (3) below).

93

(1) Irrespective of whether a question of fundamental importance is at issue here, complainants no. 2 to 4 already failed to sufficiently substantiate that the temporary enforcement of the challenged order of the Regional Court constituted a particular burden for them. Complainants no. 2 to 4 were only bound by the cease-and-desist obligation of the initial order for a period of a few weeks. During this time, complainant no. 1 was also prohibited from advertising in the manner which formed the subject matter of the proceedings. It was neither shown nor is it discernible that complainants no. 2 to 4 have a personal interest in the advertising that formed the subject matter of the proceedings, the incompatibility of which with unfair competition and trade mark provisions was acknowledged by complainants no. 2 to 4 in their capacity as the managing directors of complainant no. 1. Furthermore, a party against whom injunctive relief is being sought is protected in preliminary injunction proceedings under civil law by the liability for damages irrespective of culpability imposed on the party seeking injunctive relief by § 945 Code of Civil Procedure (see on this para. 18 above; cf. also Federal Constitutional Court, Order of the Second Chamber of the First Senate of 27 July 2020 - 1 BvR 1379/20 -, para. 25).

94

In light of this, it is all the more the case that a severe and consequential interference with fundamental rights, which could in itself have led to a continuing recognised legal interest, was not shown.

95

(2) Complainants no. 2 to 4 also did not show any persisting detrimental consequences of the initial order after it was reversed in the decision on the objection.

96

(3) Likewise, a risk of repetition of the initial order by the Regional Court or the threat of a comparable civil law preliminary injunction in the area of fair competition or trade mark law vis-à-vis complainants no. 2 to 4 was not shown; it is also not apparent. To the extent that they refer to proceedings of the same Chamber of the Regional Court as well as proceedings before other regional courts, according to their own submissions, they are not party to any of those proceedings.

C. 

97

The decision was unanimous.