Unfair Competition

The German Act against Unfair Competition [UWG] has undergone essential changes during the past years due to several new requirements in European Directives. While European Law aims at full harmonization in areas such as comparative advertising, it grants the German legislator the option to have stricter national rules, e.g. regarding misleading advertising, come into effect. It is important to assess which national and EU laws are relevant to your individual situation, and how legal practice at the respective courts has applied them so far.

The German Act against Unfair Competition provides you, as corporation or entrepreneur, with the possibility to defend yourself against unfair practices by your competitors. In case one of your competitors deploys unfair practices, it is often advisable that we as attorneys first send a cease and desist letter on your behalf to your competitor and demand from him to stop his illegal and unfair business practices. Should the competitor then not cooperate with us, we can ask the County Court in charge for an immediate injunction against him. Moreover, we can claim damages for you on your behalf and ask the court to open the competitor’s books (amongst other claims). We will advise you comprehensively on which option will be the most promising and appropriate approach in your individual situation. Afterwards, we will naturally make sure to promptly enforce your claims.

In the event your company receives a cease and desist letter from one of your competitors accusing you of anticompetitive practice, it is recommended to react in a prompt, yet well-considered manner. Once you retained WINHELLER Attorneys at Law, one of our attorneys will contact you – most probably – on the very same day to give you a first assessment of your case. Do not hastily sign any unfavourable cease and desist form sent to you by the opposing attorney, but seek legal advice first. Depending on the individual case, we may also submit a protective letter to the County Court in charge, in order to avoid a potential immediate injunction against you. We will explain which measures of defence seem promising in your individual situation, and how we will defend your company against your competitors’ attacks in the most efficient way.

The German Act against Unfair Competition refers to a number of specific provisions of German competition law which can be found in different areas of law. To infringe upon these provisions may in some cases be considered unfair competition. Depending on the individual nature of your case, national and European provisions of the following legal Acts may apply to your company:

• Telemedia Act [TMG]
• Quotation of Prices Act
• Data Privacy Act
• Protection of Minors Act
• Consumer Protection Act (e.g. obligation to inform consumers on their right of withdrawal)
• Antitrust Law
• Act on Advertising in the Health Care Sector
• Act on Pharmaceutical Products
• Act on Medical Devices
• Food Law
• Product Labelling Act
• Provisions regulating access to and practice of certain professions, particularly for physicians, pharmacists, alternative practitioners, and craftsmen
• Law on Gambling
• Provisions of capital markets and the financial supervisory laws

We have been counseling and representing our clients in the aforementioned fields of practices for many years.

In order not to offer your competitors any potential targets, we recommend to have our experts check whether your General Terms and Conditions are watertight, or to ask them to draft new – and secure – ones. Companies using void General Terms and Conditions are considered to practice unfair competition according to the German Supreme Court’s current legal practice. They will therefore most likely receive cease and desist letters from their competitors.

No matter which field of business you are active in, you will most likely present your company through a website. WINHELLER Attorneys at Law are specialized in analyzing their clients’ websites with respect to potential legal issues and in making them watertight. Please refer to our site Internet – How to make your website legally secure for further information.

Your contact person for all issues related to unfair competition is Atty. Dr. Christian Seyfert. Please contact us by e-mail (info@winheller.com) or by phone (+49 69 76 75 77 80)