Do company spin-offs and IP injunctions still apply? What the courts say

published on 20 November 2025 | reading time approx. 4 minutes

Corporate spin-offs pursuant to Section 123 (2) No. 1 of the German Transformation Act (UmwG) are a key instrument in modern corporate structuring. They enable parts of a business to be transferred to another legal entity without the transferring company ceasing to exist completely. However, this flexibility raises significant questions regarding legal continuity – particularly with regard to whether and to what extent injunctions or corporate identities are transferred to the acquiring legal entity.

The latest ruling by the Higher Regional Court of Frankfurt on 15 September 2025 (Ref. 6 W 115/25, 6 U 60/18) has set new standards in this regard. This ruling is connected to earlier decisions concerning the continued effect of cease-and-desist declarations subject to penalty (Berlin Higher Regional Court, judgment of 2 April 2012 – 52 O 123/11), as weill as to competition law case law on "traditional advertising" (Frankfurt am Main Higher Regional Court, judgment of 15 October 2015 – 6 U 167/14).

The following article demonstrates how these three decisions collectively provide a coherent overview of how legal, contractual, and identity continuity are managed in restructuring cases, and the practical implications this has for companies and creditors.

Frankfurt Higher Regional Court, decision of 15 September 2025 – 6 W 115/25: No succession of injunctions in the event of a spin-off

In the initial case, a company obtained a legally binding injunction against a competitor. Following a spin-off for absorption (Section 123 (2) No. 1 of the German Transformation Act (UmwG)), another legal entity took over the part of the business from which the original competition violations originated. The creditor now wanted to enforce the injunction against the acquiring company. However, the Frankfurt Higher Regional Court ruled that the acquiring company was not a legal successor within the meaning of Section 727 (1) of the German Code of Civil Procedure (ZPO). The titled injunction did not transfer by way of demerger, even though the affected part of the business was transferred. Nor did the joint and several liability under Section 133 (1) sentence 1 of the German Transformation Act (UmwG) change this.

This decision emphasises the distinction between asset transfer and identity continuation. A spin-off only leads to the partial succession of special rights with regard to the transferred assets and not to the transfer of highly personal obligations or procedural legal positions. An obligation to refrain from certain actions, especially if it has been established by a court, constitutes a personal legal obligation. This obligation is linked inseparably to the obligated party and cannot be "transferred" to another legal entity through a demerger. Consequently, a new enforcement order is required against the acquiring legal entity, even if it continues the same business operations.

This poses a considerable hurdle for creditors: in the event of restructuring, they must initiate new proceedings in order to enforce their claims against the acquiring legal entity. While the decision strengthens the legal certainty of the acquiring company, it limits the effectiveness of creditor protection. It is noteworthy that the Higher Regional Court expressly left open the question of whether a different assessment could apply in the case of universal succession, for instance in the context of a merger (Section 20 of the German Transformation Act (UmwG)). This question remains of considerable importance for future case law.

Berlin Regional Court, judgment of 2 April 2012 – 52 O 123/11: Continued effect of a cease-and-desist declaration with penalty clause

In an older, but related case, the Regional Court of Berlin considered with the question of whether a cease-and-desist declaration with a penalty clause continues to apply in the event of a company takeover. The court ruled that the obligation to cease and desist , as week as the obligation to pay a contractual penalty, also applies to the party that takes over the commercial business and continues it under the same name. Referring to the case law from the Federal Court of Justice (NJW 1996, 2866), the court clarified that anyone who takes over a commercial business generally enters into the contractual obligations that characterise the company, provided that these are relevant to the business operations.

The decision also contains interesting procedural aspects. The court required the purchaser to provide substantiated evidence they had no knowledge of the cease-and-desist declaration that had been issued. As this evidence was not provided, the purchaser remained bound by the declaration. This makes it clear that even in the absence of formal legal succession under the ZPO or the UmwG, a de facto obligation to comply with cease-and-desist obligations may exist, particularly where business operations are continued alongside the associated obligations.

Distinction from the decision of the Frankfurt Higher Regional Court, decision of 15 September 2025 – 6 W 115/25

While the OLG Frankfurt makes a strict formal distinction and denies the transfer of titled injunctive relief claims in its decision of 15 September 2025 – 6 W 115/2, the OLG Berlin emphasises economic continuity and allows contractual injunctive relief obligations to continue to apply. This divergence reflects a fundamental conflict between formal legal succession (ZPO/UmwG) and substantive business continuity (commercial law/competition law). Ultimately, the distinction depends on whether an obligation is to be regarded as personal (non-transferable) or business-related (transferable).

Frankfurt Higher Regional Court, judgment of 15 October 2015 – 6 U 167/14: Company history and misleading advertising

In this earlier decision, the Frankfurt Higher Regional Court dealt with advertising that used company history. A company had advertised itself as a having decades of tradition, even though it had only recently come into legal existence through a spin-off. The court considered this to be misleading under Section 5(1)(1) of the Unfair Competition Act (UWG). Advertising with an allegedly long company history is only permissible if there is economic and organisational continuity between the old and the new companies. The mere continuation of a family name or the former membership of a shareholder is not sufficient.

This decision distinguishes between permissible advertising based on tradition and impermissible misleading advertising. Even objectively true statements can be misleading if they create the false impression of a uniform company development. The Frankfurt Higher Regional Court thus clarifies that legal and economic independence must be considered in communications: Anyone advertising with the past after a spin-off or new formation must make it clear that there is no longer any legal or economic identity with the former company.

This results is a clear distinction: legal continuity arises exclusively in cases of legal universal succession, such as in the context of a merger. Economic continuity, for example through the continuation of business operations, can create de facto ties under certain conditions, but does not establish formal legal succession. Claiming such continuity without any factual basis may be sanctioned under unfair competition law.

Conclusion and outlook

The decisions demonstrate that the law places great importance on clearly distinguising between legal entity identity and economic continuation.

According to the Higher Regional Court of Frankfurt, decision of 15 September 2025 – 6 W 115/25, the obligation to refrain from certain actions is strictly bound to the original legal entity.
According to the Regional Court of Berlin, judgment of 2 April 2012 – 52 O 123/11, economic continuity may nevertheless lead to contractual obligations in individual cases.
According to the Higher Regional Court of Frankfurt, judgement of 15 October 2015 – 6 U 167/14, economic or historical continuity must not be overemphasised or misrepresented.

In practice, this means that companies must carefully examine which obligations are transferred (contractual, corporate law and competition law) and the communication strategies available to them when restructuring. Creditors must create new titles or contractual securities in good time to ensure the enforceability of injunctive relief claims.

The decision of the Frankfurt Higher Regional Court of 15 September 2025 – 6 W 115/25 closes a gap in the interaction between conversion and enforcement law – but at the same time urges caution: a spin-off can transfer assets, but it cannot create a legal identity.