Advertising & competion – Protection against unfair practices.
We are committed to ensuring fair practices among all market players. We do this on the one hand by advising our partners on how they can advertise in a lawful manner without the advertising measures failing their purpose, and on the other hand by taking consistent action against unfair market practices so that their economic success is not endangered by their competitors' rule violations, for example by violating market conduct rules, by targeted obstruction or by misleading advertising.
The Act Against Unfair Competition (UWG) and other competition laws like the Healthcare Advertising Act (HWG) serve to prevent unfair practices between competitors, thereby promoting open and free competition. The Acts require all competitors to only use fair means of acquiring customers and bans unfair practices which can be categorized as follows:
1. Misleading advertising
2. Comparative advertising
3. Violation of Market Conduct Rules
4. Protection against targeted attacks by competitors (competitor protection):
• 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
1. Misleading advertising
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
2. Comparative Advertising
Certain forms of comparative advertising are prohibited. Comparative advertising is any advertising that identifies a competitor or the goods or services offered by a competitor. This is then inadmissible if the comparison
• does not relate to goods or services for the same need or purpose,
• does not relate objectively to one or more essential, relevant, verifiable and typical characteristics or the price of these goods or services,
• creates a risk of confusion between the advertiser and a competitor, or between the goods or services they offer or the marks they use,
• takes unfair advantage of or damages the reputation of the mark used by a competitor,
• disparages the goods, services, activities, or personal or business dealings of a competitor, or
• presents a good or service as an imitation of another good or service marketed under a protected mark.
3. Violation of Market Conduct Rules
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
4. Protection against targeted attacks by competitors (competitor protection)
The following actions to the detriment of competitors are unfair, i.e. generally inadmissible:
Disparagement and denigration
It is unfair to disparage or denigrate a competitor's trademark, goods, services, activities, or personal or business affairs.
Violation of business ethics, slander
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.
Supplementary protection under competition law (product imitation)
It is unfair to offer goods or services that are imitations of a competitor's goods or services if it
• an avoidable deception of the buyer about the commercial origin is brought about,
• the value of the counterfeited good or service is improperly exploited or impaired, or
• the knowledge or documents required for the imitation were obtained dishonestly.
Targeted obstruction of competitors
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.
5. Aggressive business conduct
Aggressive business dealings aimed at getting someone to do a business transaction that they would not otherwise have done are also prohibited. This applies in particular to
• Undue improper influence: Impairing the freedom of choice of consumers or other market participants through exertion of pressure or other undue improper influence
• Exploiting Weakness: Taking advantage of a consumer's mental or physical infirmity, age, commercial inexperience, credulity, fear or predicament
6. Unfair business conduct against consumers
A particularly strict standard applies to actions towards consumers: "Black List" of inadmissible actions towards consumers
7. Protection of know-how, customer data and other trade secrets
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.
What can we do for you?
We advise companies, freelancers and traders on the competition-compliant design of their advertising measures and their website and support them in enforcing the rules of fair competition. If your competitors don't play by the rules, this can lead to a significant loss of sales, for example if a competitor unfairly induces your potential customers to buy their goods instead of yours or use their services instead of yours, or even intercepts your existing customers.
We actively support you in prosecuting violations of competition law and consistently take action against unfair behavior by the competition. If a competitor does not behave in a competitive manner, we will quickly enforce your claims for injunctive relief by means of a warning letter and a preliminary injunction if needed.
This is the only way you can effectively and sustainably protect yourself from unfair competition so that everyone (and not just you) plays by the rules. The costs of a justified warning letter or a preliminary injunction are to be borne by the person who has been warned. In addition you may be entitled to compensation, which we will of course also collect for you.
To prevent being accused of unfair behavior in competition, we advise you in advance of planned advertising measures, for example by checking your website or by examining advertising campaigns.
Warning notice received due to unfair competition?
If you have received a warning notice due to alleged unfair competition, a swift reaction will be required. Send us your warning notice by e-mail and we will review whether or not your behavior is actually unfair; we will fend off any unjustified claims. Maybe we are already familiar with your opponent.
Should you have received a warning notice from us, you might want to consult with colleagues who specialize in this particular field so we can resolve the matter as quickly and unbureaucratically as possible.
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.
Attorney at law Andreas Erlenhardt, LL.M.
Bar-certified specialist attorney for intellectual property
We do business all over Germany. Our Düsseldorf office is located within the district of the Higher Regional Court (Oberlandesgericht) of Düsseldorf, to which the following communities belong: Hilden, Langenfeld, Meerbusch, Neuss, Krefeld, Kaarst, Ratingen, Mönchengladbach, Viersen, Kempen, Wuppertal, Erkrath, Haan, Remscheid, Mettmann, Solingen, Velbert, Oberhausen, Duisburg, Mülheim, Dinslaken and Kleve – we do not have offices in these cities but only in Düsseldorf. We have advised clients who are located in Berlin, Dortmund, Bremen, Köln, Dresden, Bochum, Bonn, Gelsenkirchen, Chemnitz, Kiel, Augsburg, Koblenz, Lübeck, Leverkusen, Oldenburg, Stuttgart, Osnabrück, Paderborn, Würzburg, Ulm, Offenbach, Bottrop, Hannover, Münster, Recklinghausen, Trier, Erlangen, Jena, Reutlingen, Nürnberg, Pforzheim, Göttingen, Heilbronn, Regensburg, Ingolstadt, Darmstadt, Heidelberg, Potsdam, Leipzig, Hamm, Kassel, Saarbrücken, Mainz, Freiburg, Aachen, Braunschweig, Wiesbaden, Karlsruhe, Mannheim, Bielefeld, Essen, Frankfurt and München.