Attorney competition law

Competition law is a very practice-oriented matter that must be taken into account in many ways with all business decisions. Thus, advertisement is an essential means for the consolidation and enhancement of one's own market position in the face of growing competition on merits. In the same way, advertisement measures are subject to very strict legal requierements that must be adhered to within the framework of chance assessment to avoid offering any avenues to attack by competitors. Therefore, fair trading law is largely anchored in the Act Against Unfair Competition (UWG) which embraces the case law mentality of Anglo-American legal circles more than other fields of law. Decisions of the first civil senate of the Federal Court of Justice (BGH), which is also named the competition senate, often carry catchy names next to the actual filing reference (e.g. “Child highchairs in the Internet I and II”. “Second Dentist's Opinion”, “TÜV” etc.). Whoever does not keep up with current legal developments here runs the danger of his textbook knowledge being overtaken by the latest legal developments. Anyone who wants to react flexibly to constantly new advertising methods and other business activities (prohibitory or permitting) requires ongoing advice in the field of competition law.

The freedom to copy is valid in Germany. According to this, copies of products and business concepts within the scope of copyright law, trademark law, design rights and patent law etc. are legally permitted. Nevertheless, competition law grants a certain protection here (complementary performance protection according to competition law) which, like the requirements of competitor protection, is generally regulated in the UWG (s. 4). According to this, company services, which are performed in congruence with competition law, receive protection according to competition law under special circumstances. Outside of these limits, similar products are fully permissible due to the fact that ideas per se cannot be protected.

Advertisement which deceives regarding the facts, the person of the company, services etc. can be [classified as being] against competition law as misleading business activity. Here the borders are blurred. In many cases it can nonetheless be prudent for the company to execute an advertising campaign within the grey area, precisely because the effect which is expected from the advertising campaign goes beyond the risk associated with a utilisation of competition law by the competitor. Thus the advertising effect of an aggressive advertisement that only lasts for a short while can effectively be larger than an advertising campaign which lies fully within the green area of competition law. Risk assessments and corresponding preliminary actions are extremely important here. Moreover, an advertising campaign can often be lifted out of the red to one at least open to debate with few changes. It is important here to gauge and define the boundaries. We can help you here.

Competitions are a popular advertising campaign whether to promote the image of the company in general or to obtain specific so-called opt-ins for the company's advertisement. Consequently, sales promotion competition events still falls under competition-related aspects; moreover questions of data protection and gaming law play a not insignificant role.

The method of choice, when it comes to implementing competition law-related demands, is a written warning. If you are unsatisfied with an advertising campaign, a statement or a web presence of a competitor,the request for a cessation of activities can be taken into consideration via written warning.

A prohibition order or a cease-and-desist letter can have wide-ranging consequences. Thus the delivery of a cease-and-desist letter should not be done lightly and under clear assessment of its future consequences for the company. However, once the cease-and-desist letter has been sent or even a provisional injunction issued, this need not mean that all advertising has to end. Here, too, we often find ways out of the dilemma.