Received a cease-and-desist letter? Have it reviewed first.
Go to the free cease-and-desist check
The Wettbewerbszentrale is one of the most active parties issuing cease-and-desist letters in German competition law. Anyone who receives a letter from it should therefore neither ignore it nor hastily sign the enclosed cease-and-desist declaration.
Three questions are decisive: Is the allegation justified? How far do you need to respond? And what does it mean for you if competitors continue to use the same advertising?
Do I Have to Take the Cease-and-Desist Letter Seriously?
Yes. The Wettbewerbszentrale is backed by the “Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e.V.” (Centre for Combating Unfair Competition, Frankfurt am Main), a trade association that has existed since 1912. Under § 8 para. 3 no. 2 of the Act against Unfair Competition (UWG) it is entitled to pursue competition law infringements and, where necessary, enforces its claims in court.
An unanswered letter therefore does not simply go away. If you do not respond within the deadline set, the Wettbewerbszentrale may pursue its claims further in court proceedings.
The first question is therefore not whether you have to respond, but how.
Can’t I Simply Pay the Flat Fee and Sign?
The flat fee for costs is usually not the greatest risk. What matters is the cease-and-desist declaration.
By signing, you assume an obligation that can extend far beyond ending the current advertising:
- The declaration is, in principle, unlimited in time. It can bind your business for years to come.
- New infringements can trigger contractual penalties. This applies not only to a word-for-word repetition but, in certain circumstances, also to variants that are essentially identical.
- The declaration is not limited to an obligation to refrain. Depending on the case, you must also ensure that advertising that has already been published is removed.
- The pre-drafted text can go further than necessary. It should therefore be checked not only whether the allegation is justified, but also what content a declaration actually needs to have.
The decisive economic question is therefore not: “Is EUR 420 a lot?” But rather: What obligation are you taking on for the future by signing?
If the allegation is justified, a modified cease-and-desist declaration may make sense. Which wording is required, however, depends on the specific infringement and the claim asserted.
Before you sign: Our cease-and-desist quick check clarifies in writing whether the allegation holds up, which response comes into consideration and which changes you need to implement internally.
We review your cease-and-desist letter
Some statutory relief for recipients of cease-and-desist letters applies only to letters issued by competitors and not automatically in relation to the Wettbewerbszentrale. Do not, therefore, rely on blanket protective limits, either as regards costs or as regards a possible contractual penalty; the decisive factors are the specific infringement and the conditions of the relevant provision.
What Deadline Do I Have – and What Happens If I Do Not Respond?
Deadlines in cease-and-desist letters are usually short. Often only one to two weeks are allowed.
An extension of the deadline may be possible but cannot be taken for granted. What matters first, therefore, is to note when the deadline ends and to make a sound decision within that time.
If no response is forthcoming, the Wettbewerbszentrale may take legal action, for example by applying for a preliminary injunction or filing a lawsuit. The matter is then no longer just about the costs of the cease-and-desist letter. Court costs and, where applicable, legal fees are added.
Sitting it out therefore usually just moves the problem to a more expensive level.
What Do I Need to Do Now?
You can do a lot yourself at first:
- Note the deadline. Record the exact date on which the deadline ends.
- Do not sign anything hastily. A cease-and-desist declaration creates long-term obligations.
- Secure the current state of affairs. Document the advertising, product page or statement complained of.
- Understand the alleged infringement. Check which specific statement or obligation is being objected to.
- Look at the market. Check whether competitors use the same or a comparable design.
Only then does the actual legal question arise: Does the allegation hold, and if so, how far must your response go?
This second question in particular often cannot be answered on the basis of the cease-and-desist letter alone. Among other things, the exact wording of the advertising, its context, the scope of a cease-and-desist declaration and the case law on the particular infringement may be decisive.
Is It Enough to Delete the Advertising Complained Of?
No. Merely removing the advertising complained of does not, as a rule, eliminate the risk of repetition. In many cases, a cease-and-desist declaration backed by a contractual penalty is required for that.
Once such a declaration has been provided, it is also not enough simply to avoid the same infringement in future. Depending on the scope of the obligation, you must also remove existing publications and, where applicable, exert influence on third parties, such as marketplace operators or distribution partners.
You can carry out much of the practical clean-up yourself. You can amend your own product pages, withdraw advertising materials and review known publications.
The more difficult question is: when has enough been done?
That depends, among other things, on exactly what you have promised, which essentially identical infringements are covered by the declaration, and what influence you actually have over publications by third parties. A general checklist cannot fully replace this review.
Can I Defend Myself Against the Cease-and-Desist Letter?
Yes, if the claim asserted does not exist, or does not exist in the form demanded.
Possible starting points are, for example:
- The statement complained of is not misleading in its specific context.
- The underlying legal question is unresolved or disputed.
- The claim is time-barred.
- The cease-and-desist declaration demanded goes further than the substantive claim.
The conciliation board at the competent Chamber of Commerce and Industry (IHK) can also, under § 15 UWG, be a way of resolving a dispute without court proceedings.
Which response makes sense, however, depends on the specific case. An open legal question can make a defence possible – but at the same time it means that the outcome is harder to predict.
It is precisely at this point that uncertainty should not be concealed: “Defensible” does not automatically mean “litigation-proof”.
Where Might the Legal Position Be Open?
Not every competition law infringement can be assessed with a glance at the statute.
Disputes can arise, for example, over
- how an average consumer understands an advertising claim,
- where mandatory information has to appear,
- whether a particular design is already misleading,
- how far a claim for injunctive relief extends,
- or which variants still count as essentially identical.
In such cases, there may be several legally defensible positions. What matters then is not only whether a view can be justified, but what risk arises if a court follows the other view.
That is the boundary between mere information gathering and legal review: you can look up the text of a provision. Whether your specific design falls within it, and how robust that assessment is, does not follow from that alone.
My Competitors Do the Same – Do I Have to Accept That?
No. If a competitor infringes a market conduct rule and the requirements of the UWG are met, competitors, too, can have claims for injunctive relief of their own.
This can become economically significant if you have to change your advertising while other market participants continue to operate with the same design that was objected to.
Before you take action against a competitor, however, three points should be clarified:
- Is the competitor’s design actually comparable to yours?
- Are you yourself entitled to assert the claim?
- How vulnerable is your own market presence?
The last point in particular is often underestimated. Anyone who sends a cease-and-desist letter to a competitor must expect the competitor to examine their own market presence just as closely.
The time factor can also play a role. Anyone seeking urgent interim relief from the courts cannot wait indefinitely; how long the required urgency is deemed to continue is not uniform across Germany.
You can document an apparent competition law infringement yourself and initially secure evidence. Whether this gives rise to a robust claim for injunctive relief, and which course of action makes economic sense, is by contrast a separate question requiring its own review.
