Competition law
Competition law is intended to protect competitors, consumers and other market participants from unfair business practices. However, the increasing regulation of business conduct and behavior does not always make it easy to meet these requirements.
The regulations relevant to correct conduct can be found both in the Unfair Competition Act (UWG) and in various other laws that are recognized as market conduct rules.
Avoid mistakes
Whether online or offline: Fair trading law has long played an important role in business transactions. Every entrepreneur can assert claims against competitors under the Unfair Competition Act. Sometimes all it takes is a missing telephone number in a competitor’s legal notice.
To prevent such seemingly trivial errors from creeping into eBay, Amazon or your online store, it is worth checking your entire website or even just the ordering process. For example, we can also check your general terms and conditions or terms of use, your privacy policy or your legal notice. We are happy to assist you right from the creation of your website. In this way, you can avoid legal errors from the outset and significantly reduce the risk of warnings under competition law.
Competition law also means: Correct behavior on the market
Competition law also determines, among other things, the limits of one’s own market behavior. For example, special “rules of the game” apply to entire sectors such as telemarketing or distance selling. Only those who adhere to it will reduce the risk of being sued by competitors or consumer protection associations. In view of the usually high amounts in dispute in competition law proceedings, this should be in the interest of every entrepreneur.
Enforcement in competition law
Quite a few companies have already tried to make a sport out of troubleshooting (e.g. for incorrect imprint information). As a result, several proceedings have already been brought against the mostly surprised recipients of the allegations. In view of the sometimes considerable costs of such a procedure, it should be in the interest of every company to avoid mistakes.
Have you received a warning letter from a competitor or a consumer protection association? Stay calm and, above all, react correctly: Have the warning letter checked by a lawyer – claims are often wrongly asserted or the damages are set far too high.
Or do you notice that one of your competitors is using unfair methods to gain an advantage with consumers? Here, too, it is worth considering a course of action.
We are happy to support you in enforcing your competition law claims in and out of court.
We are based in Bonn, at Kaiserstraße 1a, and serve companies throughout Germany. Because deadlines under competition law are tight, if you receive a cease-and-desist letter or a preliminary injunction, you can reach us by phone at short notice at +49 228 387 560 200; we will then hold the meeting at our offices in Bonn or via video conference.
Frequently Asked Questions on Competition Law
Who is even allowed to issue me a warning?
Warnings may be issued by competitors who are in direct competition with you, as well as by qualified trade associations and consumer organizations that are registered on the lists maintained by the Federal Office of Justice, § 8(3) UWG. In addition, associations must represent a significant number of businesses in the same industry. It is worth verifying this, because a cease-and-desist letter issued without this authority may be rejected.
What should you do first if you receive a cease-and-desist letter under competition law?
Make a note of the deadline and have the allegation reviewed before you sign anything. The pre-drafted cease-and-desist letter is valid indefinitely and triggers a contractual penalty for each subsequent violation, which is why its wording should almost always be customized. Anyone who allows the deadline to pass without taking action risks a preliminary injunction, which can be issued within a few days.
Do I have to pay the other side's attorney's fees?
If the cease-and-desist letter is justified, the recipient is liable for reimbursement of the necessary expenses, § 13(3) UWG. For certain violations in electronic commerce and breaches of information and labeling requirements, the claim is barred if competitors issue cease-and-desist letters to smaller companies, § 13(4) UWG. Whether the exception applies depends on the specific allegation and is typically the point of contention.
When is advertising misleading?
A statement is misleading if it creates a false impression among the relevant public and is likely to influence their decision, § 5 UWG. This includes not only false statements but also accurate statements that are presented in a misleading manner—for example, by placing asterisked notes in hard-to-find locations. It also covers statements regarding discounts and availability.
How quickly do I need to respond to a violation of competition law?
Anyone who wishes to take action against a competitor should act promptly. The courts require a sense of urgency for a preliminary injunction, and anyone who waits too long after becoming aware of the issue loses that urgency; higher courts set the time limit differently, often at about one month. The claim itself is subject to a six-month statute of limitations, § 11 UWG.
How should advertisements containing reviews and posts by influencers be labeled?
Anyone who makes consumer reviews available must disclose whether and how they verify their authenticity, § 5b(3) UWG. Falsified or purchased reviews are prohibited. In the case of content that appears editorial in nature, the commercial purpose must be recognizable, § 5a(4) UWG, which requires clear labeling if there is consideration; without consideration, the situation is more nuanced according to the case law of the Federal Court of Justice.
Your Contact for Competition Law
Dennis Tölle
Partner, Certified Specialist in Copyright and Media Law, Certified Specialist in Intellectual Property Law
Your Inquiry Regarding Competition Law
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