You received the cease-and-desist letter, submitted the cease-and-desist declaration, paid up and changed your advertising. And the same advertising simply stays online at your competitors.
That is not only annoying. It can also be a real competitive disadvantage: you comply with the rules and bear the costs of doing so, while your competitors do not.
The good news: you do not simply have to accept this.
Do I Simply Have to Accept Infringements by Others?
No. The rules of competition law do not apply only to you. If a competitor breaches the same requirements, you can, under certain conditions, take action against it yourself and assert a claim for injunctive relief (§ 8 para. 1, para. 3 no. 1 of the Act against Unfair Competition (UWG)).
A key requirement is that you are actually a competitor and offer or seek goods or services to a not insignificant extent and not merely occasionally. Anyone who is permanently and seriously active in the same market segment will often meet this requirement.
Why Was Only I Sent a Cease-and-Desist Letter?
From the outside, it is usually not possible to say with certainty why only you received a cease-and-desist letter. It is possible, for example, that someone specifically drew attention to your offer. In that case it may be that action was initially taken only against you.
There is no entitlement to have all competitors sent cease-and-desist letters at the same time.
What matters for you: even if others commit the same infringement, that does not make your own infringement any less relevant. In principle, however, you can also take action against competitors who do not comply with the same rules.
Can’t I Simply Notify the Wettbewerbszentrale?
Yes, you can. A notification to the Wettbewerbszentrale (the German Centre for Combating Unfair Competition) initially costs you nothing and keeps you out of a legal dispute of your own with the competitor.
The downside: the Wettbewerbszentrale decides for itself whether and when it will take action. You control neither the pace nor the outcome and may not learn in detail what became of your notification. If the competition is currently putting you at a concrete competitive disadvantage through the infringement, this may be too slow.
What Does This Cost Me – and Who Pays in the End?
If your cease-and-desist letter is justified and the other statutory requirements are also met, the competitor must in principle reimburse the necessary expenses for the cease-and-desist letter (§ 13 para. 3 UWG).
There are, however, important exceptions.
In the case of certain infringements of statutory information and labelling obligations in electronic commerce or in digital services, competitors cannot reclaim the costs of their cease-and-desist letter from the competitor concerned (§ 13 para. 4 no. 1 UWG).
This right to reimbursement of costs may also be excluded in the case of certain data protection infringements. That applies as against businesses and commercially active associations that, as a rule, employ fewer than 250 people (§ 13 para. 4 no. 2 UWG).
In addition, for a first cease-and-desist letter concerning such an infringement, no contractual penalty may be agreed if the competitor, as a rule, employs fewer than 100 people (§ 13a para. 2 UWG).
Where, by contrast, the issue is, for example, misleading advertising involving reviews, seals, commercial guarantees or environmental claims, these special restrictions do not apply automatically. In that case a cease-and-desist letter of your own may also be an option.
If the competitor does not respond and the matter proceeds to court, further court and legal costs are incurred. Who ultimately has to bear these depends in particular on the outcome of the proceedings. It should therefore be checked beforehand how robust the claim is.
Will the Competitor Then Take a Closer Look at My Shop?
You should expect that. Anyone who sends a cease-and-desist letter to a competitor must expect that the competitor will likewise take a close look at the sender’s own online presence.
Your advantage: you have already put right the point for which you yourself were sent a cease-and-desist letter. That does not automatically mean, however, that the rest of your online presence is legally unassailable.
Before we advise you to send a cease-and-desist letter of your own, we therefore also check how vulnerable your own online presence is. If the risk of a counter cease-and-desist letter outweighs the possible benefit, we will tell you so.
The fact that you are annoyed by your competitors or are also pursuing commercial interests of your own does not in itself make taking action an abuse of rights. It may become problematic in particular where extraneous objectives predominate, such as an interest in generating fees or contractual penalties (§ 8c UWG).
It is also important that the cease-and-desist letter meets the statutory requirements (§ 13 para. 2 UWG).
An unjustified or formally defective cease-and-desist letter can itself give rise to costs for the sender. Under the conditions set out in § 13 para. 5 UWG, the recipient may claim reimbursement of the expenses necessary for their legal defence (§ 13 para. 5 UWG).
How Fast Do I Need to Be?
Faster than many people think.
Anyone who wants to apply for a preliminary injunction should not wait long after becoming aware of the infringement. In competition law, special rules on urgency apply to interim relief (§ 12 para. 1 UWG).
Anyone who remains inactive for a longer period despite knowing of the infringement may thereby show that the matter is not in fact particularly urgent to them.
There is no fixed time limit that applies uniformly across Germany. How long is too long is assessed differently by the courts. Depending on the competent court and the circumstances of the individual case, waiting for as little as about one month may already become problematic.
What may be decisive in particular is when you had reliable knowledge of the infringement and of the competitor responsible. If you already saw, in connection with your own cease-and-desist letter, that your competitors are using the same advertising, valuable time may therefore already have passed.
You must also keep the limitation period in view. Claims for injunctive relief under competition law are in principle time-barred after six months. The period begins when the claim has arisen and you have knowledge of the relevant circumstances and of the person liable, or would have such knowledge but for gross negligence (§ 11 para. 1, para. 2 UWG).
What Evidence Do I Need?
You should document the infringement as soon as possible, before the advertising is changed or deleted.
Particularly helpful are:
- screenshots of the complete page with the web address visible, together with the date and time,
- on marketplaces, the specific listing page showing the seller’s name and item number,
- for products, where appropriate, a test purchase with invoice and packaging,
- your own cease-and-desist letter as a comparison, where the same or a comparable infringement is involved.
In interim relief proceedings you must establish the relevant facts on a prima facie basis. Screenshots, documents and, where appropriate, an affidavit may be used for this purpose, for example (§ 294 of the Code of Civil Procedure (ZPO)).
Whether the documents available are sufficient in the specific case must be examined separately.
Can’t I Just Go Straight to Court?
That is possible, but a cost risk may arise.
If the competitor immediately acknowledges the claim in the court proceedings and had given no cause for the action beforehand, you may be ordered to bear the costs of the proceedings despite having a justified claim (§ 93 ZPO).
As a rule, therefore, the cease-and-desist letter is the first step. It gives the competitor the opportunity to end the dispute out of court by submitting a cease-and-desist declaration.
Where a preliminary injunction is a possibility, care should be taken at the same time not to create problems with urgency through unnecessary delay.
What If the Competitor Does Not Respond?
Then the claim can be enforced in court, for example by way of a preliminary injunction or an action.
A preliminary injunction allows for a quick provisional arrangement. It requires, however, that the legal conditions are met and, in particular, that you have not waited so long that doubts arise as to urgency.
If the competitor submits a sufficient cease-and-desist declaration backed by a contractual penalty, this is intended to eliminate the risk of repetition.
If the competitor later culpably breaches the cease-and-desist obligation it has assumed, an agreed contractual penalty may become due. It may therefore make sense to keep the market presence concerned in view afterwards as well.
