We advise and represent you in all matters of competition law. This protects companies from unfair competition, where for example, a competitor advertises misleadingly, makes use of third-party services or ‘exploits’ or deliberately hinders them. In cases like these, claims for injunction, information or damages may exist.
We help you with the demanding enforcement and defence of claims under competition law. The legal situation is not always clear due to a dynamic jurisdiction and complex regulations. We attach great importance to a quick legal assessment, because in competition law, initial clarification often takes place in summary proceedings.
You might also ask yourself one of the following questions …
In this situation, the warning party regularly demands the submission of a cease and desist declaration with the threat of penalty, as well as damages and reimbursement of expenses. The warning may also make demands regarding further acts of infringement.
This does not always mean there has been an infringement of rights.
We strongly recommend that you carefully check the warning notice before making any declarations. We are very seldom presented with warnings that are justified in all points and contain an acceptable cease and desist declaration. There are many regulations in the field of industrial property rights which allow the use of such. Often the owner of the rights does not know this or tries to enforce such rights with the knowledge that they do not exist.
If there is indeed an infringement, it is immensely important to submit a carefully worded cease-and-desist declaration, otherwise you may later face contractual penalty claims.
The demand for payment works similarly; if the warning is justified, you are generally obliged to pay, but the amount of the claim is often set too high. If there are doubts about the justification of the warning, the claim can be rejected.
German and European competition law regulates a large number of situations that the legislator wants to prevent as being unlawful. An important case group is the prohibition of misleading advertising, regulated in Section 5 of the German Unfair Competition Act (UWG). An advertisement can quickly be classified as misleading and/or immoral within the meaning of the UWG. This is regularly the case, for example, when advertising statements are untrue. For this reason, unique selling propositions such as ‘the biggest’ and ‘the fastest’ are to be used with extreme caution and only if they are factual. If this is not the case, there is often no other choice but to use less suitable, ‘fuzzier’ adjectives from a marketing point of view, e.g. ‘one of the biggest’ or ‘one of the fastest’. Also in § 5, the prohibition of unrealistically high prices is regulated. Besides misleading advertising, § 4 UWG lists further groups of cases of immoral competition.
Unlawful business activities in the sense of § 3 paragraph 3 are:
- The untrue statement of a business operator to be one of the signatories of a code of conduct
- The use of quality marks, quality labels or the like without the necessary approval
- The untrue statement that a code of conduct has been approved by a public or other body
- The untrue statement that a business operator, a business act performed by him, or a good or service has been confirmed, approved or authorised by a public or private body; or the untrue statement that the conditions for the confirmation, approval or authorisation are met
- Offers of goods or services within the meaning of § 5a (3) at a certain price, if the business operator does not inform that he has sufficient reasons to believe that he will not be able to provide or cause to be provided these or similar goods or services for a reasonable period of time in a reasonable quantity at the stated price (bait offers); if the supply is for less than two days, it is the business operator’s responsibility to prove its adequacy
- Offers of goods or services within the meaning of § 5a (3) at a certain price, if the business operator then, with the intention of selling another good or service instead, presents a faulty execution of the good or service, or refuses to show what he has advertised, or refuses to accept orders for it, or to perform the advertised service within a reasonable period of time
- The false claim that certain goods or services are available generally or under certain conditions only for a very limited period of time in order to induce the consumer to make an immediate business decision, without the consumer having the time and opportunity to make an informed choice
- After-sales services in a language other than that in which the negotiations were conducted before the conclusion of the transaction, if the language originally used is not an official language of the Member State in which the trader is established; this shall not apply where consumers are informed before the transaction is concluded that these services are provided in a language other than the language originally used
- The false statement or giving the false impression that a good or service is marketable
- The untrue statement or the creation of the incorrect impression that legally existing rights are a special feature of the offer
- The use of editorial content financed by the business operator for sales promotion purposes without this connection being clearly evident from the content or from the type of visual or acoustic representation (advertising disguised as information)
- False statements about the nature and extent of a risk to the personal safety of the consumer or his family in the event that he does not purchase the offered goods or does not make use of the offered service
- Advertising for a product or service similar to the product or service of a particular manufacturer, if this is done with the intention of deceiving about the commercial origin of the advertised product or services
- The introduction, operation or promotion of a system of sales promotion under which the consumer is required to make a financial contribution for the possibility of obtaining remuneration solely or principally by introducing other participants into the system (snowball or pyramid scheme)
- The false claim that the trader is about to go out of business or move his premises
- The statement that a particular good or service increases the chances of winning at a game of chance
- The false statement or giving the false impression that the consumer has already won or will win a prize or will obtain some other advantage through a particular action, where such a prize or advantage does not actually exist, or in any event where the possibility of obtaining a prize or other advantage is made conditional on the payment of a sum of money or the assumption of costs
- The false claim that a good or service can cure illness, dysfunction or deformity
- A false statement about market conditions or sources of supply to induce the consumer to buy or use a good or service on less favourable terms than the general market conditions
- The offer of a competition or prize where neither the prizes promised nor a reasonable equivalent is awarded
- The offer of a good or service as ‘free’, ‘gratis’, ‘free of charge’ or the like, if costs are nevertheless to be borne by the consumer; this does not apply to costs which are unavoidable in connection with the acceptance of the offer of the good or service or for the collection or delivery of the good or the use of the service
- The transmission of advertising material accompanied by a request for payment if this gives the false impression that the goods or services being advertised have already been ordered
- The untrue statement or the creation of the incorrect impression that the business operator is a consumer or is not acting for the purpose of his business, trade, commerce or profession
- Falsely stating or creating the false impression that after-sales service is available in relation to goods or services in a Member State of the European Union other than that in which the goods or services are sold
- Giving the impression that the consumer cannot leave certain premises without first concluding a contract
- In the case of a personal visit to the home, failure to comply with a request by the visited person to leave the home or not to return to it, unless the visit is justified for the lawful enforcement of a contractual obligation
- Measures intended to prevent the consumer from exercising his contractual rights in an insurance relationship by requiring him, when making his claim, to produce documents which are not necessary to prove that claim or by systematically failing to reply to letters sent in support of such a claim
- The direct invitation to children, included in an advertisement, to purchase the advertised goods or services themselves or to induce their parents or other adults to do so
- The request to pay for goods or services not ordered but delivered or provided, or a request to return or retain items not ordered
- The explicit indication that the business operator’s job or livelihood is at risk if the consumer does not take delivery of the goods or services
Comparative advertising has been liberalised. It is now permissible in principal and is regulated in detail in § 6 UWG. However, it is only permitted within a strict framework. For example, only objective and verifiable facts may be compared. The competitor may not be disparaged or denigrated.
… then we are pleased that we could help you.
Support and advice for internet shops, e.g. on questions of distance-selling law or contract drafting
Consulting and preparation of web design contracts
Advice on data protection issues
Defense of warnings by competitors
Assertion of claims for injunctive relief or damages