ERLENHARDT RECHTSANWÄLTE. TRADEMARKS, DISTRIBUTION & ADVERTISING.

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1.  Misleading advertising

2.  Comparative advertising

3.  Violation of Market Conduct Rules

4.  Protection against targeted attacks by competitors (competitor protection):

       •  Disparagement

       •  Violation of business ethics, slander

       •  Supplementary protection under competition law (essentially product imitation)

       •  Targeted obstruction of competitors

5.  Aggressive business dealings (improperly influencing and exploiting weakness)

6.  Unfair commercial practices towards consumers (black list)

7.  Protection of know-how, customer data and other trade secrets

A commercial activity constitutes misleading advertising if it contains untrue information or contains other information that is likely to mislead about the following circumstances:

  •  the essential characteristics of the goods or service such as availability, nature, design, advantages, risks, composition, accessories, process or time of manufacture, delivery or performance, fitness for purpose, possibility of use, quantity, quality, after-sales service and complaints procedure, geographic or operational origin, results to be expected from use or the results or significant elements of testing of the goods or services;

  •  the reason for the sale, such as the existence of a special price advantage, the price or the manner in which it is calculated, or the conditions under which the goods are delivered or the service is provided;

  •  the person, characteristics or rights of the entrepreneur such as identity, property including intellectual property rights, the extent of obligations, qualifications, status, accreditation, memberships or relationships, awards or honors, reasons for doing business or the manner of distribution;

  • Statements or symbols related to direct or indirect sponsorship or an approval of the entrepreneur or the goods or services;

  •  the need for service, part, replacement or repair;

  •  compliance with a code of conduct to which the entrepreneur has committed himself when he refers to this commitment, or

  •  Rights of the consumer, in particular those based on guarantee promises or warranty rights in the event of disruptions in performance.

A commercial act is also misleading if, in connection with the marketing of goods or services, including comparative advertising, it creates a likelihood of confusion with another good or service or with a competitor's trademark or other distinctive mark.

Misleading commercial actions can also be committed by omission, for example by the trader withholding essential information from the consumer, for example

  •  an essential characteristic of the good or service

  •  the identity and address of the entrepreneur or the entrepreneur for whom he is acting

  •  the total price or the type of price calculation and any additional freight, delivery and delivery costs

  •  terms of payment, delivery and service

  •  the existence of a right of withdrawal or revocation

The violation of a legal provision, which is also intended to regulate market behavior in the interest of market participants (so-called market behavior regulations), is unfair. Some examples of market conduct rules:

  •  § 6 ElektroG (electrical law, electrical equipment law, electronic equipment law) – registration obligation for manufacturers of electrical and electronic equipment and sales ban for unregistered electrical and electronic equipment; Stiftung ear (Stiftung Elektro-Altgeräte Register), WEEE number

  •  § 9 ElektroG (electrical law, electrical equipment law, electronic equipment law) – labeling requirements for manufacturers of electrical and electronic equipment (garbage can, manufacturer and date of first placing on the market in the EU)

  •  § 6 ProdSG (Product Safety Act – law for making products available on the market) – obligation to label consumer products

  •  § 6 VerpackV (Packaging Ordinance) – Obligation to participate in a nationwide system for the regular collection of used, empty sales packaging from private end consumers

  •  § 3 BuchPrG (Book Price Fixing Act) – book price fixing for the sale of new books

  •  § 1 PAngV (price information regulation) - price advertising, price information, basic price, total price, price clarity, price truth, etc.

  •  §§ 312 ff. BGB, Art. 246 f. EGBGB – information requirements and cancellation policy for distance contracts

  •  § 3 HWG (Healthcare Advertising Act) – Advertising for medicinal products, misleading advertising for medicinal products, advertising for medicines, advertising for treatment methods, advertising for medical products, advertising for dentists, advertising for doctors, advertising for non-medical practitioners, advertising for physiotherapists, advertising for pharmacists, advertising for hospitals , drug law, medical device law, drug advertising law

  •  § 3a HWG (Healthcare Advertising Act) – distribution of non-licensed medicines

  •  § 11 Para. 1 No. 7 HWG (Healthcare Advertising Act) – evoking or exploiting feelings of fear in the context of advertising for medicines

  •  Unauthorized use of the professional title architect or urban planner – Section 2 BauKaG NRW, Section 1 HASG, Section 3 ArchG RP, Section 2 ArchG BW, Section 1 NArchtG, Section 2 BremArchG, Section 4 ArchIngKG, Section 1 BbgArchG, Section 1 SächsArchG, Section 3 ArchtG-LSA, § 1 ThürAIKG, § 3 ArchG M-V, § 2 SAIG, Art. 1 BauKaG BY, § 2 ABKG, § 2 HmbArchtG

  •  § 7 HOAI – Ban on falling below the minimum fee rates for basic services according to the Ordinance on Fees for Architectural and Engineering Services (HOAI)

  •  Food, Commodities and Feed Act (LFGB) - food law, labeling of food, advertising for food, misleading advertising for feed, feed law, advertising for cosmetics, advertising for consumer goods

  •  § 10 AMG (Medicines Act) – Mandatory labeling for medicinal products

The following actions to the detriment of competitors are unfair, i.e. generally inadmissible:

A breach of business honor or slander is the assertion or dissemination of facts

  •  about a competitor's goods, services or business, or

  •  about the entrepreneur or a member of the management of a company,

which are likely to damage the operation of the company or the credit of the entrepreneur, unless the facts are demonstrably true; if the information is confidential and the sender or the recipient of the information has a legitimate interest in it, the act is only unfair if the facts were alleged or disseminated contrary to the truth.

Targeted obstruction of competitors is unfair. This includes, for example, intercepting customers, deliberately inducing customers to breach a contract, calls for boycotts, poaching employees, industrial espionage, unjustified property rights warnings (e.g. a warning for alleged trademark infringement) and, under certain circumstances, price undercutting.

A particularly strict standard applies to actions towards consumers: "Black List" of inadmissible actions towards consumers

The protection of know-how and trade secrets goes much further than classic intellectual property rights such as patents. This concerns for example business strategies and addresses, contact data and other data of customers and suppliers and other confidential information that needs to be kept secret, i.e. special knowledge that can only be effectively protected by consistent know-how and trade secret protection.

This starts with organizational measures that ensure that secrets remain secret and extends to contractual non-disclosure agreements (NDAs) and the consistent prosecution of unfair acquisition, use or disclosure of trade secrets, for example by former employees or competitors. The Act for the protection of trade secrets (GeschGehG) contains the relevant regulations.

Feel free to contact us by sending us an e-mail or calling us at any time. We are looking forward to helping you with any issues relating to competition law.