German Unfair Competition Law

The German Act against Unfair Competition [UWG] has changed significantly over the past few years due to several new European Directives. While European Law aims at full harmonization in areas such as comparative advertising, German law retains stricter rules regarding, for example, misleading advertising. It is therefore important to assess both national and EU laws and precedent when considering your company’s particular situation with respect to German Unfair Competition Law.

The German Act against Unfair Competition permits corporations and entrepreneurs to defend themselves against competitors’ unfair business practices. But, even where a competitor is clearly violating the law, it is advisable to begin by sending a carefully drafted cease and desist letter on your behalf.

If the competitor refuses to cooperate, you can consider a variety of litigation strategies, including moving for a preliminary injunction before the competent District Court, bringing an action for damages and requesting that the court require your competitor to disclose records related to its anticompetitive activities. To ensure the prompt enforcement of your claims, we can advise you comprehensively regarding the most promising and appropriate course of action.

If your company receives a cease and desist letter from a competitor, we recommend responding in a prompt, yet well-considered manner. And we strongly advise all of our clients against signing any cease and desist forms sent by the opposing party without first consulting a lawyer.

Our attorneys at WINHELLER have extensive experience with EU and German Unfair Competition Law and can work with you to quickly evaluate the letter, attendant risks and the optimal course of action. Depending on the individual case, we may also submit a protective letter to the competent District Court, thus preventing the opposing party from moving for a preliminary injunction. We will also carefully determine and explain to you the other available defenses, strategies and options – including their relative advantages and disadvantages.

The German Act against Unfair Competition refers to a number of specific provisions of other German competition laws. Infringing upon these provisions may constitute unfair competition. Depending on the nature of your business activities, the national and European Acts that you may have to comply with include:

• 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 counseled and represented our clients in the aforementioned areas of law for many years and would be happy to help you navigate these and other German and EU laws regarding (anti-)competitive practices.

According to current German legal precedent, companies employing legally invalid General Terms and Conditions are engaged in unfair competition – exposing them to the risk of receiving cease and desist letters or even lawsuits from competitors. To prevent your competitors from finding any flaws, we recommend having our attorneys review your existing General Terms and Conditions, or drafting them anew.

No matter the industry, most businesses today operate a company website. However, not all have carefully considered whether their website is legally compliant. WINHELLER is specialized in analyzing clients’ websites for potential legal issues, including anti-competitive practices. Please refer to our site entry – E-Commerce – for more information.