GERMANY: Amends Rules on Unfair Competition Law

Substantive amendments of the “Gesetz gegen den unlauteren Wettbewerb” (UWG)—the German codification of the laws of unfair competition—entered into force in December 2020. The modifications are aimed at strengthening fair competition and seek to prevent the practice of sending so-called abusive warning letters.

The changes relate in particular to the entitlement in bringing an action (locus standi), the requirements for legitimate warning letters, reimbursement of costs, and the competent court for bringing lawsuits under the UWG in Germany, as follows:

1. The locus standi of competitors in bringing claims under the UWG has been restricted. Competitors must now prove that they are actually engaged in business activities and that they sell or demand the goods or services to a not inconsiderable extent and also not just occasionally. It is not expected that courts will interpret this requirement in an overly restrictive manner, but it is clear that the modification will bring some tightening of the current practice.
2. The locus standi of trade associations also has been specified. Only associations with legal capacity for the promotion of commercial or independent professional interests are now eligible to sue. This requires that an association has been entered into the list of qualifying trade associations.
3. The new law also provides specific requirements for the content of warning letters. The following information must be provided in the letter in a clear and comprehensible manner:

• The name of the party which raises the claim;
• The statute used as basis for the claim;
• The claim for reimbursement of cost must be specified; and
• Details on the infringement must be provided.

4. Finally, the so-called “flying place of jurisdiction” (in German law) has been restricted. Traditionally, plaintiffs could often choose from a rather wide selection of courts for filing an infringement action. This has been changed for legal disputes arising from an online infringement. Only the court in the district the defendant has its general place of jurisdiction shall remain competent. The same applies for legal disputes asserted by trade associations, qualified institutions, chambers of industry and commerce, and comparable organizations.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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