Competition Law

Competition is really common in the market economy. All the parties shall act applying transparency and fair competitive conditions; in this way, the right and necessary competition requirements can be set and developed. The Unfair Competition Act (UWG) aims to ensure these objectives.

Advertising represents something positive for the company and thus involves a reduction in the number of other market participants. This is – intentionally – in line with competition. However, the reduction must not predominate. Over the decades, a detailed, strongly case-by-case oriented jurisprudence has been developed. For example, the exercise of direct or indirect coercion on customers may be considered anti-competitive; the customer acquires the products not on the basis of a free decision but because of the “pressure” exerted on him.

The targeted unfair obstruction of competition, the poaching of customers or employees directly from the competitors, or calls for boycotts are generally considered prohibited. The exploitation of the inexpierece not considered bearable. Since the abolition of the German Rebates Act and the Ordinance on Bonuses, numerous discount systems, bonuses and other customer loyalty systems are considered by the jurisdiction basically permissible advertising measures. A particular case of unfair competition law is the exploitation of third-party services; the mere imitation of unprotected services as such does not has to be considered self-evidently as unlawful. Only slavish imitation, the exploitation of third parties advertising measures or the exploitation of the reputation of others is to be considered severely anti-competitive.

The phenomena of the German Vorsprung durch Rechtsbruch – transl. “advantage on the breach of law”, i.e. the violation of other standards, can lead to an anticompetitive behavior. Although an infringement of neutral regulations could not be considered sufficient, the so-called advantage by breach of law is one of the more frequent infringement on competition.

The Claim

Reconstructing an existing claim is easy; to develop a new claim can involve customers and performance oriented contents, which could easily disappear but can nonetheless leave important associative traces.

The results of this investigative activity are not protected, unless by internal secrecy or slavish imitation. Minor changes can already lead out of the scope of protection of this latter. So, who is actually allowed to aknowledge the results of possible pitches or brainstormings? What are the possibilities of a customer-oriented protection?