The German Habit of sending out Cease and Desist Letters to Competitors
When you start trading in Germany you may be in for unpleasant surprises. The first letter your German subsidiary receives may likely be a formal cease and desist notice sent by your competitor’s lawyers. Why? Because under German unfair competition laws, every business has the right to formally demand competitors to fully comply with any and all German laws. And there are many such laws and regulations, some of which a British entrepreneur or even a British lawyer would never expect to exist.
Thus, everyone who considers starting business activities in Germany should read the German Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG). Read it, shake your head, then read it again.
- Every website and all stationary (letters, emails etc) must quote the complete business details including full business address, commercial register number, name(s) of director(s) and more. For details see section 5 UWG on incomplete information about a business trading in Germany.
- Your website must have a so called “Impressum” which contains all relevant company information. Pursuant to section 5 Telemediengesetz the customer must be able to find the entire information about the offering company “easily” and “quickly”.
- Websites must comply with German consumer protection laws and data protection laws; sounds harmless but the requirements are so complex that even most German companies are in breach of some aspects of these regulations.
- Advertising material must specify its publisher.
- All information on websites and advertising material must be truthful. You think that is understood and no problem? Well, here is an example for a typical mistake: We often represent British businesses which establish a German subsidiary and then make advertising statements like “25 years of experience” because the British parent company has been doing business for 25 years and they think they are allowed to make such statements for the entire group. They are not! Two weeks later, the German subisiary (a newly formed GmbH) is being served a number of cease and desist letters by German lawyers demanding to stop making this false and misleading statement, because the German subsidiary (which has made that statement in their ads) does not have 25 years of experience.
- Another classic mistake is making an incorrect or incomplete price quotation on a website or on any advertisement material. Any mentioning of a price must clearly specify the final amount, the German VAT and any information about delivery costs. If not, this constitutes an infringement of section 1 II Preisangabenverordnung (PAngV) and in turn an infringement of the competition regulations (sections 3 and 3a UWG). Again you may think: How hard can this be? Well, take a look for yourself. It tells you a lot about German law that the regulation about how prices for goods and services must be presented is 8 pages long, see here.
Why are German Competitors (and their Lawyers) so aggressive?
These cease and desist letters (Aufforderung zur Abgabe einer strafbewehrten Unterlassungserklärung) are more than a mere nuisance because it is a peculiarity under German law that the recipient of such a lawyer’s letter must bear the competitor’s lawyers legal fees. Without any prior warning! The first letter you receive already triggers costs for you. Depending on the concrete breach these costs range from a few hundred to a few thousand Euros. And if you are unlucky, you will receive cease and desist letters from various german competitors with regard to the same breach.
Thus, German business lawyers are very interested in representing German businesses in that field, because with each such cease and desist letter they stand a good chance of earning a few thousand Euros. Their clients, your German competitors, are also keen of sending out such cease and desist letters, because it makes life difficult and expensive for new competing businesses, Ideally, this is a way for an established German business to prevent the market entry by a new company.
Do not ignore Cease and Desist Letters!
We note that British clients doing business in Germany tend to ignore such letters from competitor’s lawyers. This is a big and costly mistake, because if you to not acknowledge the breach and make a formal promise to the competitor to remedy the breach, then the competitor has the right to immediately sue your company. The competitor will apply to a German court by way of an Unterlassungsklage (action for an injunction). In most cases, the claimant will apply for an accelerated proceeding and ask for a preliminary injunction (einstweilige Unterlassungsverfügung), which – in obvious cases or if the British defendant does not properly respond – is usually granted by the German courts.
Then it becomes really dangerous, because if your company continues the breach (e.g. the website still infringes German laws or regulations) then very harsh penalties kick in. Depending on the size of your business (turnover in Germany), the number and duration of the breaches and other factors, the German court may order your company to pay a penalty (Ordnungsgeld) of up to 250,000 Euro.
Thus, in case you have been served an Unterlassungsaufforderung (cease and desist letter), you should immediately remedy the breach, then contact a German business lawyer and discuss what your options are. In most cases, if you have actually been in breach of German laws or regulations, you will have to (teeth-grindingly) acknowledge this breach (by sending them an Unterlassungserklärung) and to pay the opponent’s legal fees. In most cases, however, there is a chance to negogiate about the other side’s legal fees.
Such a formal acknowledgement (strafbewehrte Unterlassungserklärung) prevents the competitor from suing you. However, such an acknowledgment letter is only valid if it contains a promise to pay a contractual fine (Vertragsstrafeversprechen) in case you breach the same regulation again. Without such a promise to pay a fine the acknowledgement letter is worthless and you still rund the risk of being sued.
We certainly hope that we have not killed your desire to start trading in Germany. However, when you take up business activities in Germany, you should expect to be closely monitored by your German competitors. Thus, do not give them a chance to torture you with costly cease and desist letters.
By the way: It is not just competitors who may be observing you. German consumer protection groups (Verbraucherschutzorganisationen) also have the right to send out cease and desist notices.
For more on German business and corporate law see these posts:
- How to read a German Company Register Extract
- Company Forms in Germany: An Overview
- Pitfalls of German Contract Law and German Company Regulations (Part 1)
- Pitfalls of German Contract Law (Part 2)
- 3 Ways to Expand Your Business to Germany
- Establish a German Limited Company (GmbH): FAQ and Checklist
- What is a GmbH? The German Limited Liability Company explained
- What is a German “Mini GmbH” or “Unternehmergesellschaft”
- Checklist: Formation of a German Company. And then what?
- Buying a German Company: A quick Checklist
- When Starting a German Business: Don’t Forget the Trade Register Notification
- 10 Things to do when starting a German Business
- German Labour Law: Beware of Fictitious Self-Employment
- Brexit as a Business Opportunity for British SME’s
- German Business and Corporate Law Firm for British and US Clients
More information on litigation and legal fees in Germany is available in the Expert Law Blog German Civil Procedure and in these posts:
- Making a Court Claim for Money in Germany: It’s actually quite easy
- Standard of Proof in German Civil Litigation
- German Litigation Experts explain Civil Procedure Rules
- A German Claimant can’t be his own Witness
- Compensation for a wrecked Car under the German Law of Torts
- Does German Law of Torts know the Egg Shell Skull Rule?
- How expensive is a German Lawsuit?
- Expert Reports on German Law
- Forensic Accountants for German Civil Lawsuits and Business Litigation
Experts on German-British and German-American Legal Matters
Since 2003, the German business and corporate law firm Graf Partners LLP specialises in British-German and US-German legal cases. Our German business and corporate lawyers are native speaker level fluent in English, have many years of practical experience with clients from Britiain and the USA and are part of a well established network of law, tax and accounting firms.
Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, with a focus on German-American and German-English commercial, corporate and also probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003.
In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070.