Unfair competition

Legal advice on unfair commercial practices & false advertising

How entrepreneurs are allowed to behave when marketing and selling products - especially towards consumers and competitors on the market - is primarily governed by the Unfair Competition Act (UWG). As a special tort law, it protects competitors, consumers and other market participants from unfair commercial practices that impair fair competition. Whether a commercial practice is unfair is determined either by the general clauses in paragraphs 2 and 3 of the § 3 UWG or by the special provisions of § 4 to 7 UWG. In addition, the so-called "black list" in the Annex to Section 3 (3) UWG lists specific business activities that are unfair and therefore prohibited without exception.

Unfair commercial practices affect a wide variety of areas and range from disparaging competitors and imitating products or services to enticing employees away by deception. Particularly important here is false advertising . For companies, advertising is not only an important way for to arouse interest in their products and services and thus increase sales figures, but also to provide information about current offers and price or market developments. Especially through the Internet and digitalization, the possibilities for advertising have significantly expanded, which means there are many more legal pitfalls to consider. However, advertising campaigns such as raffles on the internet, or the sending of newsletters, are often implemented by specialists who are not fully aware of the legal requirements. As a result, it can quickly happen that without intending to do so, companies often cross the line into false advertising.

Regardless of ignorance or intent - companies that do not comply with the applicable competition law rules risk not only risk costly legal penalties due to unfair commercial practices and false advertising, but also reputational damage that can have a massive impact on business success in the long term. To prevent this, the review and assessment of business acts by a legal expert is always advisable.

As expert lawyers in competition law and specialist lawyers for intellectual property rights, we at ab&d Rechtsanwälte will be happy to provide you with comprehensive advice on unfair competition and show you whether and why your business activitie are legally permissible or not. Whether online presences, product labeling or advertising measures - we always review your business conduct for legality under the applicable national and international competition law as well as related special laws such as as the German drug advertising law or the intellectual property law. We are always up to date with the latest legal developments to provide our clients the best possible advice on all competition law matters.

Call us now on the telephone number 030 36 41 41 90  e-mail us at kontakt@abd-partner.de or use directly our contact form to schedule a free initial consultation on your competition law issues!

Your lawyers on unfair commercial practices:

Specialist lawyer for intellectual property rights

Review of online presences

Business online presences today mean a risk of warnings per se because "the whole world" can see them. Therefore, entrepreneurs should take particular care with the design and content of their own website and online store.

For example, the following legal violations are frequently the subject of warnings by competitors and associations:

  • misleading (false) statements about products or companies (violations under 5 UWG),
  • claims of being the market leader (violations according to 5 UWG),
  • incorrect or missing information in the imprint (violations according to 3a UWG i.V.m. § 5 TMG)
  • incorrect or incomplete price information (violations according to 3a UWG in conjunction with the Price Indication Directive (PAngV).

The list could go on and on. Also commonly subject to warnings are violations of the German Health Services and Products Advertising Act (HWG), consumer-protecting EU directives such as the Textile Labeling Directive or the Health Claims Regulation, data protection violations, incorrect cancellation policy and general terms and conditions, but also advertising with fake test results and ineffective disclaimers.

In any case, it is worth having your own website reviewed regularly by a lawyer in order to avoid cease and desist letters under competition law . As experienced competition lawyers we analyze your web content in detail and then discuss the results with you, as well as the opportunities and risks. Of course, we will also provide you with specific suggestions for changes where we see a need for change.

Review of advertising measures

You should also be careful when designing advertising measures and keep an eye on the limits of competition law. In addition to the content design, there are also rules for the distribution and dispatch of advertising material.

For example, emails may almost never be sent for advertising purposes without the consent of the recipient (§ Section 7 (2) No. 3 UWG). And there are also strict rules for phone calls and postal mailings. The same applies to social media (Instagram, Facebook, TikTok), in which advertising must always be openly labeled as such, otherwise it is prohibited surreptitious advertising (§ Section 5a (6) UWG).

Here too, it is worth coordinating planned advertising measures with specialist lawyers in advance with regard to the content and planned transmission in order to prevent cease and desist letters. As experienced lawyers in competition law, we know exactly what is "possible" and what is "not possible" and will show you not only prohibitions, but also legal alternatives for your advertising.

Review of products and product packaging

The production, placement on the market, and distribution of products of all kinds are subject to a large number of regulations in the EU. Additionally, there are various labeling requirements. The development and market launch of new products should therefore be carefully monitored from a legal perspective. If the requirements of the relevant legal provisions are not met, there is a risk of receiving competition law warnings and court-ordered distribution bans.

To name just a few examples of important regulations: Regulation (EU) 2017/745 about medical devices; Regulation (EU) No 1169/2011 concerning the provision of food information to consumers; Regulation (EU) No 1007/2011 on the designation of textile fibers and the associated labeling and marking of the fiber composition of textile products (so-called Textile Labeling Ordinance). A central role is played by the prescribed CE marking by which a manufacturer or importer within the EU declares that his product complies with all legal requirements.

Violations of such regulations and laws generally give rise to a breach of law according to § 3a UWG and are therefore unfair.

As a law firm specializing in competition law we have many years of experience in dealing with and interpreting legal provisions that "regulate market behavior" (§ Section 3a UWG). Let us advise you on bringing products into the market that comply with legal requirements.