Unfair competition: deception, imitation, obstruction, exploitation of reputation

According to specific according to the German Law against Unfair Competition (UWG), anyone who offers goods or services which are an imitation of a competitor’s goods or services is acting unfairly and thus anti-competitively if this causes an avoidable deception of the customers about the commercial origin of the goods/services or if the reputation of the imitated goods/services is inappropriately exploited or impaired.

Comparative advertising may also lead to anti-competitive deceptions, or other impairments of products or marks, without this necessarily causing an infringement.

If you are affected by a competitor’s anti-competitive conduct, immediate action is required: the issuance of a preliminary injunction requires urgency. The statutory presumption of urgency is, however, considered to be refuted if the applicant for a preliminary injunction waits for a longer period of time although the applicant has knowledge of the competition law infringement (and knows the person who has committed the infringement) or was grossly negligent in not knowing the person who has committed the infringement.

The assessment of urgency depends on the individual case, but time limits have developed which, depending on the court, are usually one month. Before applying for a preliminary injunction, the infringer should be given the opportunity to avert legal proceedings by submitting a cease-and-desist declaration with penalty clause.

It should be noted that claims under competition law become stature-barred 6 months after the claim has arisen in case of knowledge or grossly negligent ignorance of the circumstances giving rise to the claim.

If you have already received a warning letter, you should take care that the time limit set is observed, because otherwise there is a risk of a preliminary injunction being issued. However, a cease-and-desist declaration with penalty clause should not be issued prematurely and not without examination, because this may give rise to a contractual claim with, in part, far-reaching liability consequences.

If there are well-founded arguments against an alleged infringement, it may be advisable to deposit a protective letter in order to give the court the opportunity to examine the counter-arguments already at the time the decision to issue the preliminary injunction is taken. If these counter-arguments are sound, the application for a preliminary injunction will either be rejected or an oral hearing will be held first, which can save more time.

We are happy to advise you on all competition law issues and conflicts.