The “Law to Strengthen Fair Competition” has changed the competition law (UWG) considerably since December 2nd, 2020. In the event of a warning due to missing or incorrect information obligations on the Internet (e.g. imprint, cancellation policy, price information regulations, etc.), competitors are no longer allowed to claim warning costs. In addition, a cease and desist declaration with a contractual penalty may no longer be demanded from the warned party for these warning issues. There are now specific formal requirements for a warning. You can find detailed information in my article “Does your warning letter also have formal errors?”. Interestingly, at the beginning of November 2020 we received a warning from a warning association for review and advice, which was designed according to the new law.
If there are formal errors, the warning is usually not ineffective. According to § 13 Abs. 5 UWG, the admonished can assert a claim for reimbursement of expenses: The admonished can demand reimbursement of legal fees from the admonishing if the formal requirements of § 13 Abs. 2 UWG are not met. The claim for compensation is limited to the amount of the warning costs. The warned person can therefore assert his legal fees up to the amount of the costs that are demanded in the warning.
The new law did not take into account the current warning
A few days ago we received a current warning with a request for advice. Our client received the warning after December 1st, 2020. This date is important insofar as the new law applies to all warnings that are sent to the person who has been warned from December 2nd, 2020. It depends on the date on which the person warned actually received the warning.
In any case, our client received the warning after December 1st. 2020 received. It was a typical warning according to old law. The new formal requirements and information obligations had not yet been taken into account in this warning. The subject of the warning was violations of information obligations on an Internet trading platform, such as a missing imprint or incorrect cancellation policy and a missing link to the OS platform. According to the experience from our many years of consulting practice, this warning issue occurs very frequently. A declaration of cease and desist with a contractual penalty was not only requested with regard to these points. In the warning, costs were also asserted, which is inadmissible. Formal errors within the meaning of Section 13 (2) UWG do not necessarily mean that the warning and the asserted injunctive relief claims are ineffective. Nevertheless, the legislature has provided for cost reimbursement claims of the warned. Ineffective with the consequence that there are no claims for injunctive relief can be a warning if it is illegal. Here too, the legislature has provided a lot of new evidence that can already result from the formalities of a warning.
Result: The warning person has to reimburse our costs
In any case, we asked the warning letter on behalf of our client to reimburse our costs in the amount in which the warning letter had asserted these against our client in his warning.
Of course, we will check whether your warning is complying with the new formalities as part of a consultation.
About me and my work:
As a specialist lawyer for intellectual property law in my law firm Internetrecht-Rostock.de, I advise warned people like you on a daily basis and therefore have experience from a large number of warning proceedings.
The law firm Internetrecht-Rostock.de has been providing information on topics for online retailers on its website of the same name for more than 15 years with now almost 3,000 articles and advises a large number of online retailers on how to secure their presence.
I will advise you nationwide by telephone at short notice. As part of my advice, I will discuss the legal situation and the various alternative courses of action with you, along with their respective advantages and disadvantages. You will of course also receive specific recommendations from me for how to proceed.
Did you receive a warning after December 1st, 2020?
I advise you.
You can easily get in touch with me using the contact details provided:
– Just give me a call.
– Send me an email.
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Johannes Richard
Lawyer
Specialist lawyer for intellectual property law
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