Infringements of competition law
successful warnings

The field of intellectual property law includes in particular competition law, which lays down the rules of the market and whose rules Peter Weiler, as a proven expert, enforces for his clients. In the following, we will inform you about the claims to which you may be entitled as an entrepreneur who has suffered an infringement of competition law. We will give you an overview of infringements that can be the subject of a warning letter and point out the special features of the warning letter process. If you would like further information, please send us your inquiry directly using the initial consultation form and we will get back to you within 48 hours with an initial assessment.

As a market participant who has been harmed by the unfair conduct of a competitor, you can assert claims for injunctive relief, removal, disclosure and compensation as well as reimbursement of warning costs. However, the fact that you are entitled to these claims does not always mean that you can enforce them. As specialist lawyers for intellectual property law, we know the requirements and deadlines that must be met when asserting the respective claims and can therefore help you assert your rights in the best possible way.

As a business owner, your first impulse may be to try to get your competitor to refrain from infringing competition law as quickly as possible. In most cases, you are right to do so, as the claim for injunctive relief can be quickly asserted both out of court and in court with the help of a caution letter and the subsequent declaration to cease and desist or an interim injunction. Once the cease-and-desist declaration has been signed or the preliminary injunction issued, the matter is usually closed.

Examples: A competitor who imitates your products must remove these plagiarized products from the market. A competitor who spreads defamatory statements about you must delete them and may not repeat them.

It becomes problematic if, for example, the manufacturer of counterfeit products has already supplied its products to an intermediary. However, the manufacturer must still do everything reasonable to persuade the intermediary to recall/stop the sale. As what is "reasonable" can be disputed in specific cases, you should also consult a lawyer here.

In addition to the injunctive relief, you may also be able to assert the following claims:

• Compensation for damages
• Disclosure
• Remedy
• Reimbursement of warning costs

In practice, our many years of experience have shown that the assertion of these claims, in particular claims for disclosure or damages, are usually more difficult to enforce than claims for injunctive relief. As specialist lawyers for intellectual property law, however, we know how damage must be documented, proven and calculated in order to be asserted successfully. The same applies to the right to information. This is because, in addition to your own loss of sales, you may also be entitled to a claim for absorption of your competitor's profits. To do this, however, you must first be informed of the profit that your competitor has made by copying your products, for example, and your competitor will rarely provide such information voluntarily.

As specialist lawyers for intellectual property law, we represent entrepreneurs who are threatened with or have already suffered damage due to the unfair behavior of their competitors and who want to put an end to this behavior quickly and effectively. There are many reasons for warning letters. In the following, we present the reasons why small and medium-sized companies most frequently issue warning letters, as these infringements otherwise lead to enormous damage to sales and reputation:

Almost every industry is affected by product piracy. The fashion industry, for example, estimates that counterfeit products cause a total annual loss of 3.5 billion euros in Germany. If you are affected by product piracy as a manufacturer in Germany, you can defend yourself. The prerequisite for a successful warning based on Section 4 No. 3 UWG is, on the one hand, the competitive individual character of your product and an intent to mislead the targeted consumer by causing a deception about the commercial origin of the product or an intentional exploitation of your good reputation when selling the counterfeit product. Note that consumer deception does not have to occur, the product only has to be suitable to deceive the consumer.

Unfairness also includes disparagement and denigration of your own products or services by competitors. Defamation and the dissemination of untrue facts on the Internet can significantly damage both your company's image and the sales of your products. Such smear campaigns are prohibited under Section 4 No. 1 UWG and can be stopped by us with the help of a warning letter under competition law. As specialist lawyers for intellectual property law, we can distinguish between prohibited, untrue facts and sometimes permitted value judgments and stop the blanket devaluation of your company, your name, your products and services.

In its ruling on the women's handbag "Le pliage" by "Longchamp", the Higher Regional Court of Hamm found that the "competitive individual character" does not require the novelty or reputation of the product. (OLH Hamm, judgment of 16.06.2015, ref.: 4 U 32/14). Although a certain degree of familiarity of the product helps to determine its individual character, it depends on whether the interested public can infer its commercial origin from the overall impression of the product. For you, this means that your product must have an individual appearance compared to comparable competitor products based on its overall effect, which allows the public to draw conclusions about its commercial origin (OLG Cologne, judgment of 26.07.2013, Ref.: I-6 U 28/13).

If imitations of your products are being sold on marketplaces such as amazon (Marketplace) or eBay, contact us.

The imitation of products protected by competition law and defamation of competitors are not the only infringements of the UWG that can be cautioned. § Section 4 UWG contains various other examples of how entrepreneurs are harmed by the unfair behavior of their competitors.

Not everything is allowed in advertising either. Even if a competitor does not mention you personally in their advertising, you as a competitor can take action against certain statements with the help of a warning letter under competition law.
In accordance with Section 5 (1) UWG, untrue facts or other statements that are likely to mislead are not permitted in advertising. If your competitor advertises with information that does not correspond to the truth and is likely to mislead the target public, you can take action against this. Examples of possible misleading advertising include untrue statements about the availability or risks of a product. The place of manufacture is often advertised as Germany, which is supposed to stand for quality and reliability. However, the OLG Frankfurt a.M. has just clarified that the advertisement "German company - we guarantee the quality of the modules we manufacture" gives consumers the impression that the product is manufactured in Germany. This statement may only be made if this is actually (largely) the case.

Comparative advertising can also be warned under certain circumstances. According to Section 5 (2) UWG, this is misleading if there is a risk of confusion between the products of the entrepreneur and the goods or services of a competitor in connection with the advertising.

It is also an infringement of competition law if a competitor has dishonestly obtained the know-how required to produce the counterfeit products. Dishonest does not mean that the knowledge had to be obtained through a criminal offense. Rather, this also includes, for example, documents from your company that were part of contract negotiations between your company and a competitor.

Affiliations with other organizations

In order to present themselves in a better light, companies often claim to be a direct or indirect sponsor of an event or organization. As potential customers may only decide to buy the company's product because they want to support the allegedly sponsored cause, you can warn against such behavior.

Advertising with reviews

Companies like to advertise with reviews from satisfied customers, especially on social media websites. But caution is advised there too. For example, the OLG Frankfurt a.M. has just ruled that it is unfair to advertise with reviews that have been submitted in return for participation in a competition.

A warning letter is the method of choice for successfully asserting claims for injunctive relief and damages. Provided you adhere to the specified legal regulations, the chances of a quick, cost-effective remedy of the infringement of competition law and the assertion of compensation for lost sales and other damages are high. Pay attention to the following points in order to successfully assert your claims with the help of a warning letter under competition law.

It is essential for the success of a warning letter under competition law to demonstrate and prove unlawful conduct to the detriment of the party issuing the warning letter. The conduct in question must be subsumed under the respective prohibition standard of the UWG. This is often a time-consuming and labor-intensive process, even for lawyers. As specialist lawyers for intellectual property law, we have additional training that is tailored to competition law issues.

The warning letter is accompanied by a cease-and-desist declaration, in which care must be taken to ensure that both the deadline for submitting the cease-and-desist declaration and the amount of the contractual penalty are reasonable. The amount of the contractual penalty can be capped for certain infringements thanks to the new law against warning letter abuse and the lawyer knows when he can demand which contractual penalty. The new law also changes the place of jurisdiction. If an out-of-court settlement cannot be reached, the lawyer will know where to file a lawsuit in case of doubt.