Unfair competition
I. Importance of the law on competition in Germany
In spite of recent changes German competition law is still very strict. German law makes many provisions to try to maintain fair competition for all. It has a very clear position concerning one of its most fundamental laws; the law against Unfair Competition. In practice, most cases fall under the general prohibition of § 1 UWG, which provides that whoever in commerce, for competitive purposes, acts contra bonos mores is subject to an action for injunctive relief or damages. It is not always easy to determine, what exactly the bonos mores in commerce are and therefore this term leaves lots of room for interpretation.
Disputes in the field of competition law often take place between competing businesses, for example in connection with an advertising campaign. There are also many institutions in Germany whose aim it is to protect competition. They also are capable of taking legal action against any anti-competition practices. Last but not least there are companies whose main occupation is trying to detect unfair practices in order to earn money from them.
II. Procedural questions
Disputes in the field of competition law always follow the same pattern. The one, who has discovered an unfair competitive practice, sends a letter to the one, who supposedly has committed it. In this letter the violator is asked to refrain from the unfair practice in the future; to prevent the violator from committing future unfair competitive practices, he is asked to sign a declaration in which the violator confirms that he will discontinue with the unfair competitive practice or otherwise pay a penalty to the other party. If this declaration is not made, the other party can apply for an injunction, which in most cases is granted within a few days without a hearing. The court will also fix a penalty which will be due if the unfair practice happens again.
It goes without saying that an injunction will only be granted, if unfair competitive practice actually took place. If you are accused contravening the law on unfair competition or you want to stop a competitor to engaging in certain activities, a careful examination of the legal situation is required.
III. Preventive counselling
Since the activities of each business are observed closely by competitors and other organisations, it is recommended that any marketing or publicity campaign is scrutinized for compatibility with the law on unfair competition. Otherwise your investment might be lost due to an injunction granted by the court.
IV. Costs
The preventive counselling and the examination of actions that might be of relevance to the law on unfair competition are charged on the basis of our hourly fee (cf. fees).
In case of court proceedings or out of court warning notices we work on the basis of the BRAGO. In most cases the value of the subject matter is between EUR 50,000.00 and EUR 150,000.00. The exact fees depend on the actual course of the proceedings and therefore can vary between EUR 500.00 and EUR 10,000.00. If the proceedings are very complicated and involve a lot of extra work, we reserve the right to charge for the actual time we spent on the case.