Warning letter UWG - how to avoid adverse legal consequences!

Online retailers in particular are often confronted with a warning letter from a competitor or a competition association in connection with marketing activities. This article explains what to do in this case.

Inhalt

1. Warning letter UWG: an introduction
2. What are the requirements for a warning letter?
3. What should generally be observed in the case of a warning letter under the UWG?
4. What should traders do if they receive a warning letter?
5. Warning letter under the UWG - how a specialized lawyer can help!

1. Warning letter UWG: an introduction

Warning letters under competition law are nothing unusual in business. The legal basis for this is the Unfair Competition Act (UWG).

Before paying, however, those affected should always check whether the sender is authorized to issue a warning, but also whether it is obviously justified and whether the prescribed fees appear reasonable.

This is because lawyers often base such proceedings on a high object value - from around 5,000 euros - which rarely corresponds to reality. It is therefore almost always worth negotiating the fees.

2. What are the requirements for a warning letter?

Whether abuse has occurred and how serious it is can only be assessed on a case-by-case basis.
An indication of an abusive warning is, for example, if the impression is created that the enforcement of the claim is primarily being used to pursue personal interests that are not worthy of protection or that it is primarily being used to impose costs on the infringer.

A lack of justification for the warning may also constitute a reason for misuse. For example, warning institutions must prove that they represent a significant number of traders who, according to the law, "sell identical or similar goods or services on a market with commercial intent."

3. What should generally be observed in the case of a warning letter under the UWG?

A warning letter can be issued for various reasons and often concerns copyright infringement or deceptive advertising.
The legislator's intention behind the Unfair Competition Act is to treat all market participants fairly and equally and to provide adequate protection against deceptive or fraudulent maneuvers.

Particularly in the case of copyright infringements and breaches of the truthfulness of prospectuses, there is a rigid crackdown. For example, no false statements may be made regarding origin, ingredients, product features or product characteristics, as this would lead to an unlawful distortion of competition.

Due to the complexity of the underlying legal matter, professional advice from a lawyer specializing in competition law is highly recommended in this situation.

Is there a limitation period?

When prosecuting infringements of competition law, Section 11 UWG stipulates an unambiguous limitation period of six months. However, the period only begins to run as soon as the complainant has demonstrably gained knowledge of the infringement.

If the competitor was unaware of the relevant competition rules due to gross negligence, this does not interrupt the limitation period.

4. What should traders do if they receive a warning letter?

First of all, it must be evaluated whether the sender is actually authorized to assert a claim under competition law.

This is because a legally valid warning can only be issued to traders who are in a direct competitive relationship with the party issuing the warning, both in terms of the services or goods offered and in terms of the industry, which is subject to competition law.

Commercial institutions or non-profit competition associations are only responsible if a significant number of injured parties belong to the relevant association as regular members.
According to the ruling of the Higher Regional Court of Hamburg dated February 20, 2009 (3W 161/08), every warning letter must contain sufficiently specific information about the party issuing the warning letter so that the existing competitive relationship can be verified.

It should also be checked whether the warning letter appears to be justified. A specialist lawyer for competition law can provide decisive assistance here.

5. Warning letter under the UWG - how a specialized lawyer can help!

First of all, the lawyer will use various case studies on the Unfair Competition Act (UWG) to check whether there is actually an infringement that can be regulated by a warning letter.

If this is the case, he will research comparable court proceedings that have already been concluded on the Internet in order to form an opinion on the legal situation in this case.

He will also enquire at the register of associations of the competent local court and at the Chamber of Industry and Commerce responsible for the person issuing the warning whether other warnings have already been issued or how these were assessed by the court.

As a specialist lawyer for commercial legal protection, I have extensive professional expertise and experience in dealing with warning letters under competition law.

I will be happy to advise you on all matters relating to competition law, review advertisements, apply for interim injunctions and represent you in court in competition law disputes.

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