The author of the article is lawyer Felix H. Kissner. Mr. Kissner is an attorney at the law firm Barkhoff | Reimann | Vossius in Munich. Since January 2012, Mr. Kissner has been advising clients in the area of competition and trademark law. Mr. Kissner specializes in the areas of medical devices, Health Claims VO and other special regulations in the areas of chemistry, medicine and consumer products.

The situation is every entrepreneur's nightmare. On an otherwise successful working day, you will receive an email from an association or a law firm with which you have not been in contact before. What begins with the happy expectation of a new business transaction then ends with great disillusionment. You or your company are accused of violating competition rules and are being asked to submit a declaration of injunctive relief.

Warnings are unfortunately part of business life

Warnings due to misleading advertising repeatedly roll into the mailboxes of many companies. In these cases, it concerns in detail, for example, the composition of the product or even the quantity information.

Timely action is absolutely advisable

A warning is often intended to initiate so-called interim relief proceedings. Therefore, the deadline stated in the letter must be observed for now and should also be noted down in order to avoid higher costs. These arise if, after expiry of the period, legal proceedings are brought without any response, and the courts will then impose the costs on the opponent. At this point, entrepreneurs are well advised not to ignore the set deadline, regardless of how long it is set. If in doubt, an extension of the deadline can often be agreed with the other party.

Close examination of the allegation is your first line of defense

In the next step, every company would do well to examine exactly what the other side is accusing the company of. In a warning, the facts must be explained in an understandable way and, if necessary, it must be proven with pictures or attachments which violation is being warned. This is exclusively a matter of the warning being formulated in such a way that first the admonished person and later the courts know on the basis of the text — and the appendices — which conduct is intended to constitute an infringement of law. In our example with the wrong synopsis, i.e. which content was advertised and what the customer actually finds.

In this case, the warning would be inadequate if it simply claims that there is false information in your product range and that this should be omitted in the future. This presentation is so abstract that it does not enable the opponent to defend himself against the warning and there would then be opportunities to ward off the warning as “ineffective” in court.

How are warnings legally established?

In many cases, the claim for injunctive relief is found in the Unfair Competition Act (UWG). Most paragraphs of the UWG are very general by European and German legislators and therefore leave plenty of room for interpretation. Case law is therefore more important than in other areas of law.

Why is reading the law often not enough to examine the legal claims of a warning?

For individual entrepreneurs, however, this means that reading the law does not reveal whether the allegation complies with the legal situation or not. Further reading of case law and legal comments is necessary here.

If, therefore, in § 5 para. 1 sentence 1 UWG of”undertakes a misleading commercial act which is likely to induce the consumer or other market participant to make a business decision that he would not otherwise have made“The talk is, there is still plenty of room for interpretation. However, the incorrect statement of the composition of a product is expressly listed as an example in Section 5 Paragraph 1 No. 1 UWG, and an infringement of this is therefore immediately understandable.

The law and the natural euphemism treadmills leave plenty of room for creative advertising messages

Between the sober descriptive description of the ingredients and the deliberate misrepresentation of these ingredients, there is of course also a wide playing field for creative messages to end users. Marketing professionals know how to use this.

Of course, a company's advertising that is creative cannot simply be banned. Even if there is tough fighting in cutthroat competition, a ban or the underlying claim for injunctive relief is a high hurdle that is not easy to overcome.

When do courts finally step in?

This means that a court will only intervene if the admonishing party, as the claimant, can credibly demonstrate to the court that the end customer would expect something different from what he finds in the packaging based on the description in the advertisement. The advertising statement then represents an objectively false statement of fact, which would be prohibited by the court.

A statement of fact is when the statement can be subject to objective verification. If the content of a package is advertised as “with the largest content,” this can be verified. If the content is only described as “particularly good for you,” this is probably just an advertising exaggeration that would not be prohibited.

What steps should you take if a warning proves justified?

If the warning proves to be justified, a declaration of injunctive relief should be submitted. The promise of injunctive relief must also be comprehensible and formulated as precisely as possible and, above all, must be punished. Punishment means that the injunctive debtor must promise to pay a contractual penalty in the event that he violates the declaration of injunctive relief.