Unfair Competition

We advise you in all matters relating to German unfair competition law and represent you in all unfair competition disputes.

German competition law, despite the influences of the European Union, remains strongly marked by national peculiarities. A knowledge of German specificities, especially in the field of civil procedure law, is indispensable to avoid the many pitfalls of the subject matter.

We support you in the preparation of your advertising campaigns directed at the German market. In particular, we analyse their compatibility with the German rules on unfair competition in order to minimise or, depending on your strategy, to measure the risks of a planned campaign.

If one of your competitors on the German market uses methods which you consider to be incompatible with fair competition, we will subject the acts in question to an examination in relation to German law and seek an out-of-court solution, if the acts are contrary to fair competition or at least likely to be qualified as such.

The preferred and highly effective instrument of an out-of-court solution is the warning letter, in German Abmahnung, accompanied by a request for a declaration of cessation with a penalty. It aims to bring an act of unfair competition to an immediate end, but may, depending on the case, be accompanied by a request for information and damages.

A warning letter may be the first step towards the issuance of an interim injunction, as a person who fails to comply with a justified warning letter will have to bear the tribunal’s and lawyer’s costs for the issuance of such an order. However, in cases of particularly high urgency, it may be preferable to apply for an order without first sending a warning letter.

An interim injunction shall not entitle a claim for information or damages. If it is not sufficient to obtain the cessation of the act of unfair competition, the summary proceedings must be followed by proceedings on the merits. The same applies if your opponent does not accept the order as a definitive solution. In this case, proceedings on the merits are unavoidable, the summary proceedings order being provisional in nature.

Frequently, a competitor on the German market, whether German or foreign, may have a warning letter issued to you. Such letters should be taken seriously, as they can be quickly followed by an interim injunction issued by a German court which can be enforced abroad, i.e. in your home country. After all, any commercial act directed towards the German market must comply with German competition law!

Of course, you are not helpless in the face of an interim injunction. If the injunction proves to be unjustified, it will be annulled following an opposition that is not subject to a time limit. On the other hand, if the injunction proves to be justified, you should not only comply with it in order to avoid sanctions, but also recognise it as a final decision, in order to avoid it being followed by proceedings on the merits which generate additional costs at your expense.

Dr. iur. Alexander Mittmann
Rechtsanwalt · Avocat à la Cour
Sworn Translator

Kaiser-Wilhelm-Strasse 93 · 20355 Hamburg
Tel.: +49 (0) 40 46 00 86 93
Fax: +49 (0) 40 46 00 86 94
E-Mail: info@mittmann-law.de