In legal practice, we regularly encounter situations where clients receive cease-and-desist letters alleging copyright infringement—for example, of photographs or other works—without being able to determine whether the party issuing the letter is actually entitled to assert the alleged claims. It is precisely this uncertainty that poses a significant risk to those affected, as they often feel compelled to issue cease-and-desist declarations prematurely without being able to reliably verify the validity of the claim. The alternative would be to proceed with costly litigation. However, people generally seek to avoid these costs.
Prevailing Opinion: No Obligation to Provide Evidence with the Cease-and-Desist Letter
According to the prevailing view in case law and legal scholarship, the party issuing the cease-and-desist letter is not obligated to submit evidence of its standing to sue at the time the letter is sent. It is true that Section 97a(2) of the German Copyright Act (UrhG) requires that the identity of the infringed party be specifically named and the infringement be precisely described. It also follows from this that the party issuing the cease-and-desist letter must set forth all facts supporting the claim, in particular the infringed right and the specific act of infringement.
However, a majority of scholars reject the notion of any further obligation to submit supporting evidence. The warning letter is primarily intended to facilitate out-of-court dispute resolution and should not anticipate the full presentation of evidence at this stage. An obligation to submit evidence is recognized only in exceptional cases, such as when the party issuing the warning letter expressly refers to existing evidence but fails to attach it.
Some scholars argue that an obligation to submit evidence may indeed exist in individual cases. However, this view remains a minority opinion and has not yet gained widespread acceptance.
The Decision of the Regional Court of Frankfurt am Main: Differentiation Based on Reasonable Doubt
In its decision of March 10, 2026—2-06 O 41/26— the Frankfurt am Main Regional Court clarifies that this principle remains in effect: There is no general obligation to submit evidence at the time the cease-and-desist letter is issued. In doing so, the court initially aligns with the prevailing opinion.
At the same time, however, the court makes a crucial distinction. It emphasizes that the cease-and-desist letter is intended to enable the recipient to verify the claims asserted. If this is not possible due to a lack of information—particularly regarding standing to sue—this may trigger further obligations on the part of the party issuing the cease-and-desist letter.
The Recipient’s Duty to Inquire and Seek Clarification
According to the case law of the Federal Court of Justice, if the recipient of the warning letter has legitimate doubts, they are obligated to raise these with the party issuing the warning. They must therefore specifically point out that doubts exist regarding the party’s standing to sue or the alleged infringement and may request corresponding evidence.
This so-called duty to raise concerns and request clarification is central: Without such a request, the party issuing the warning is generally under no obligation to submit further evidence.
The Party Issuing the Warning’s Burden of Proof in Individual Cases
This is precisely where the practical significance of the Frankfurt am Main Regional Court’s decision lies. The court clarifies that the party issuing the warning must respond to such doubts. If legitimate doubts are raised and the recipient of the warning is unable to clarify the legal situation on their own, the party issuing the warning may be obligated to substantiate their standing to sue by providing appropriate evidence.
This is particularly relevant in situations where the recipient of the warning has indeed engaged in the use in question but cannot determine whose rights are specifically affected. In such cases, it cannot reasonably be expected of the recipient to conduct comprehensive independent research into the ownership of the rights.
Appropriate Evidence: An Affidavit Is Also Sufficient
The court further states that, in principle, an affidavit is also suitable for proving standing to sue. Although it has no direct criminal law effect outside of court proceedings, it is nonetheless suitable for establishing the credibility of the alleged legal position, as it can regularly be used in subsequent proceedings—for example, as part of a protective brief.
Implications for Practice
This provides a clear recommendation for legal practice. Cease-and-desist letters should not be accepted without review if there are doubts regarding their validity. Rather, it is necessary to articulate these doubts specifically and request appropriate evidence.
The decision by the Regional Court of Frankfurt am Main thus significantly strengthens the position of those who have received cease-and-desist letters. It makes clear that they are not defenseless against mere allegations but can actively demand a review of the validity of the claim. At the same time, the principle remains that the initiative for this must initially come from the recipient of the cease-and-desist letter.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.