Business competition is only natural to humans
Unfair Competition - An Overview
Unfair business dealings:
Blackening of competitors (§ 4 No. 2 UWG)
Competitors are to be protected from untrue, business-damaging factual claims, not from negative but true factual claims. Mere expressions of opinion are not included here. In addition, the factual assertion must be capable of damaging the operations of the company concerned or its credit.
If the communication is confidential and the person making the notification or the recipient has a legitimate interest in the communication, the act is only unfair if the facts have been asserted or disseminated contrary to the truth.
You should always be very careful with negative comments about competitors. You can then also get to the area of criminal law very quickly.
Disability competition (§ 4 No. 4 UWG)
Disability is understood as the impairment of the competitive development opportunities of the competitors (sales, purchase of goods, production, advertising, research / development, personnel deployment, planning, financing, etc.).
A prerequisite for inadmissibility is a targeted approach with the intention of being disabled: The measure must primarily be aimed at disrupting and hindering the competitor.
- Call for a boycott
Price guarantee in connection with the new opening of the competitor "I am always 10% cheaper than my competitor xy"
- Targeted pasting over or defacing of the competitor's advertising posters
- Black market trade in football tickets
Special case: tempting to breach a contract
Anyone who induces a customer to breach a contract is acting in an anti-competitive manner with a view to deliberately hindering the competitor concerned (e.g. breach of an exclusive obligation contractually agreed between manufacturer and dealer, breach of notice periods). If, however, only the breach of contract by a customer is used, then this is not necessarily a hindrance i. S. d. UWG before.
Exertion of pressure
Pressure and aggressive advertising are not permitted. This is understood to mean adding or threatening disadvantages, which makes the rationality of the decision completely in the background. Such pressure is already inadmissible according to § 4a Abs. 1 UWG. In addition, the “black list” contains a number of aggressive business activities that are per se impermissible.
Prohibited pressure media can be:
1. Physical coercion (physical violence, deprivation of liberty)
Clause 25 “Black List” regulates that creating the impression that the consumer cannot leave certain premises without first concluding a contract is prohibited. Such situations are said to have occurred in particular in connection with dubious providers of timeshare offers. Through such business practices, the entrepreneur can at the same time make himself punishable for coercion and possibly even for deprivation of liberty.
2. Psychological or moral pressure
According to Section 30 “Black List”, it is forbidden to expressly state that the entrepreneur's job or livelihood is at risk if the consumer does not buy the goods or services. By such a statement as e.g. B. "If you do not give me this job, I have to file for bankruptcy tomorrow" or "I have to lay off 50 employees", the consumer should be conveyed that he is to blame for the termination or for the bankruptcy. Since he does not want to be to blame, the pressure is enormous and leads to the freedom of choice being restricted in an inadmissible manner.
3. Unlawful threat (blackmail, coercion)
This refers to cases where the threat of harm is threatened. E.g. "if you do not buy / do / waive your warranty claim, I will".
4. Generating fear
In the person concerned, the idea of an impending danger and thus fear is generated. This fear can relate to personal (illness, death, honor) or general circumstances (catastrophe, war). Daily worries, however, are irrelevant. Under this aspect it was not allowed, for B. the advertisement of a drinking water filter system, in which it was suggested that tap water without such water treatment poses a health risk.
5. Other means of pressure
The means of pressure can also be authoritarian pressure from a prominent position (e.g. a certain office) or economic pressure (e.g. from the influence of market power). It depends very much on the individual case whether the specific behavior is to be assessed as inadmissible or permissible. If necessary, other laws than the UWG come into question as a sanction option, e.g. B. Regarding the exploitation of market power, the Law against Restraints of Competition (GWB).
Aggressive business practices also include the group of cases mentioned in Section 27 “Black List”, in which the entrepreneur “lets the consumer appear”. According to this, measures are inadmissible by which the consumer is to be prevented from enforcing his contractual rights from an insurance relationship by requiring him to submit documents when asserting his claim that are not required to prove this claim, or by writing to assert such a claim are systematically not answered. The fact that only insurance contracts are explicitly mentioned is probably due to the fact that this was the industry in which the most complaints arose. However, it can be assumed that with comparable business practices, e.g. B. in the case of low-cost flight providers, Article 4a UWG or the general clause in Article 3 (2) UWG will be used and such business activities are also not permitted in other industries - in contrast to the "black list", however, there is a possibility of evaluation.
In a certain way, temporal pressure on the consumer can also be classified as inadmissible exertion of pressure. Clause 7 “Black List” regulates that it is forbidden to make an untrue statement that certain goods or services are generally or only available for a very limited period of time under certain conditions in order to induce the consumer to make an immediate business decision without this time and has the opportunity to decide on the basis of information.
Emotional advertising is advertising that appeals to the potential customer's feelings. Feelings can be pity, helpfulness, charity, willingness to donate, social responsibility, vanity, piety, sadness or the like.
Anyone who uses these motifs in advertising is no longer automatically acting anti-competitive - that was different until 2006. Using emotions to create additional incentives to buy is no longer generally viewed as an impairment of freedom of choice through an inappropriately unobjective influence. It is also no longer necessary that there is a factual connection with the emotional appeal. Objectives that are completely foreign to the product may also be pursued (e.g. crate of beer - donation for the rainforest). The previously relevant term “performance competition” no longer plays a role.
Advertising only becomes anti-competitive if it is misleading, i.e. if the promised good deed is not implemented. It would also be misleading to state that the promotion of a social purpose depends on the turnover of the goods, although in reality a certain amount of support was set in advance.
In addition, the advertising must be transparent. According to case law, it is not necessary to provide specific information about the type and scope of a social, cultural, sporting or ecological commitment. Such information can still be useful to increase credibility.
In no case should the advertising be inhuman. No company will be interested in portraying itself as inhuman to the outside world. When attracting attention, however, the limit can sometimes be exceeded - consciously or unconsciously - that z. For example, a scene is shown on a poster that suggests rape, or that the stamp “HIV positive” has been stamped on a person's skin.
In particular in the case of such advertising or also in advertising in which the moral sense is disregarded (e.g. tasteless advertising with regard to sexist representation), the advertising self-control by the German Advertising Council (www.werberat.de) can intervene on complaint.
Those who advertise by exploiting feelings of fear also act unfairly, Section 4a (2) sentence 2 UWG - see also under pressure.
See also image advertising
Particularly strict standards apply to the admissibility of health advertising. With regard to a misleading effect, health products - including food of all kinds, cosmetics, medical products, pharmaceuticals - are judged more strictly than with "normal" consumer goods, especially with regard to the clarity, unambiguity and truth of the advertising and the scientific backing up of facts is concerned. In order to protect the general public from harm, advertisements in the field of health care must always correspond to reliable scientific findings. But even if it is scientifically correct, advertising with health-related claims is not always permissible.
Health advertising is not only subject to the UWG, there are also regulations in the following laws:
- Medicines Act (AMG), in particular Section 8 AMG
- Heilmittelwerbegesetz (HWG), in particular §§ 3, 6 and 11 HWG
- Food, consumer goods and feed code (LFGB), in particular §§ 11, 12 LFGB
- Regulation on nutrition and health claims made on food (Regulation EC No. 1924/2006).
Disease-related advertising for food to the lay public is generally prohibited, see Section 12 (1) No. 1 LFGB. This means that it is not allowed to advertise that a certain food has properties that serve to prevent, treat or cure a human disease. It shouldn't even create the appropriate impression. This applies regardless of whether this effect has been scientifically proven. The reason for this is that the fear of illnesses are not instrumentalized for advertising purposes for food and the consumer should not be discouraged from going to the doctor in good time, trusting the effect of the food. So - at least in advertising - it is not food that should be used against diseases, but drugs, medical devices and suitable procedures and treatments.
General references to the health or health-promoting properties of foodstuffs or luxury foods without any reference to a disease are, however, permissible. This applies in particular if the advertising only emphasizes the value of the food in maintaining or strengthening the health.
However, the delimitation is often very difficult, especially since more concrete references to health have been viewed as misleading by case law even if their suitability has been proven in many cases or scientifically established. Such statements do not take into account that the effect is completely different for each consumer, e.g. B. because of his individual physical constitution.
In particular, it is forbidden
- to advertise with healing or disease-relieving effects,
- to use "testimonials", "recommendations" or so-called "testimonials", e.g. B. by having a doctor in the white make the health-related statement or a mother who reports on the super effect: "My cholesterol has gone down significantly",
- To allow persons in authority to make health-related statements, e.g. B. A dentist or doctor recommends the use of a certain margarine.
As admissible z. B. viewed
- "brings new momentum to your everyday life"
- "ensures a healthy and youthful appearance".
Health Claims Regulation
The EC regulation on nutrition and health claims on food, also known as the Health Claims Regulation, has been in force since July 1st, 2007. It specifies mandatory and Europe-wide uniform criteria for nutrition and health claims when advertising food. It reverses the rule-exception principle, and there is now a preventive ban with reservation of permission for all nutrition and health-related claims. While health-related claims were previously permitted in German food law, provided they met the general legal requirements (especially the prohibition of misleading people under Section 5 UWG or Section 11 LFGB or special labeling requirements), they are now only permitted under certain conditions. These principles apply to all commercial claims, including but not limited to: Advertising in all media, from product packaging to brand names.
Health related information
Health-related means that it is declared, suggested or indirectly expressed that a food has good effects on health or that it lowers the risk of illness (Art. 2 Para. 2 No. 5 of the Ordinance). According to Section 10 (2) of the Ordinance, such information is only permitted if
- at the same time, the need for a varied and balanced diet and a healthy lifestyle is pointed out,
- Information is given on the amount of the food and the consumption pattern that is necessary for the food to have a positive effect,
- it may contain a note to people who should not consume the product,
- A suitable warning is attached to products that may pose a health risk if consumed in excess.
According to Art. 12 of the regulation, the following are not permitted:
- Claims which give the impression that health could be impaired by not consuming the food
- Information on the duration and extent of weight loss
- Information referring to recommendations from individual doctors or representatives of the medical professions and to certain associations.
In addition, health-related claims are not permitted for all beverages with an alcohol content of more than 1.2 percent by volume.
All information must be included either in the labeling of the product or in the presentation of the food and its advertising.
A nutrition-related claim is any claim that explains, suggests or even indirectly expresses that a food has particularly positive nutritional properties, due to the energy (calorific value) and / or due to the nutrients or other substances. A number of nutritional information is expressly regulated, e. B. "low energy", "fat-free", "no added sugar" or "high fiber". This means that a food may only be given these designations if it has the properties detailed in the annex to the ordinance. In addition, nutritional profiles are to be developed based on scientific evidence about nutrition and its importance for health. If these nutritional profiles are then developed by the EU Commission and a food does not meet the requirements for sugar, fat or salt content, for example, nutrition and health-related advertising is prohibited regardless of their truthfulness. The only exception for nutritional information: If only one nutritional profile specification is not met and the high sugar, salt or fat content is prominently pointed out.
Overall, the field of health and nutrition claims is so complex, and much in connection with the Health Claims Regulation is still completely unclear, that such information should only be used after expert advice from a lawyer who specializes in this area.
Further information on the subject of the “Health Claims Ordinance” and the text of the ordinance can be found on the homepage of the Federal Food Law and Food Science Association. V. www.bll.de and can be found there under specialist topics.
Misleading about healing product effects:
According to section 18 of the “Black List”, it is absolutely forbidden to make false claims that goods or services can cure diseases, functional disorders or deformities. Here there is an overlap with the prohibition of Section 3 of the Therapeutic Products Advertising Act.
Demeaning and denigrating competitors
According to § 4 No. 1 UWG, it is inadmissible to disparage or denigrate the trademarks, goods, services, activities or personal or business relationships of a competitor.
These behaviors create a not only insignificant disadvantage for the entrepreneur concerned. Objective criticism of the competitor is possible at any time, but lack of objectivity has no place in the competitive dispute. True factual assertions - even if they can be detrimental to business - are fundamentally permissible. However, a balancing of interests is necessary here, i. H.there must be a factually justified interest in information on the part of the targeted public, and the criticism must be of a measure and type.
Although comparative advertising is now permitted (see there), it must be truthful and factual. Not permitted is e.g. B. a comparison without naming the specific competitor, as this allows a collective downgrading of the competitors.
False factual assertions are always inadmissible according to § 4 No. 1 UWG, unless § 4 No. 2 UWG has already been fulfilled - such assertions are not covered by freedom of expression.
Caution is also advised with brand parodies in which a well-known brand is slightly modified - this can also be punished under trademark law - or when changing well-known advertising slogans to make a negative statement.
Image advertising and social engagement
Social engagement is playing an increasingly important role. It often happens under the heading of corporate social responsibility (CSR), i.e. under the aspect of civic / social responsibility. For companies, social engagement is interesting, among other things, if they can point it out in public and thereby achieve a positive image as a company. Sponsorship can also fall into this category.
In the past, such emotional advertising with the promotion of non-profit, charitable or environmental goals was viewed very critically and was subject to very strict requirements. One wanted to prevent that the performance in the form of the goods was no longer in the foreground of the competition, but the customer was emotionally packed and persuaded.
Today, such image advertising is primarily about transparency. Anyone who is regionally committed, has a heart for children or protects the rainforest and wants to use this in advertising campaigns must actually do so. Everything that is said must be true. A sponsorship service must not be so insignificant that it does not justify the promotional exposure, and if there is a concrete link between sales of goods and sponsorship (e.g. donation per unit purchased), additional information should be provided. The BGH decided that there was no general obligation to inform the consumer about the type of support or the amount of the donation. Nevertheless, companies should consider whether they want to contribute to even more transparency through such information and thereby increase their credibility.
However, the image advertising of a company “We are committed to environmental protection” would be permissible without any specific connection with the purchase of goods, provided that no further circumstances arise that would make the advertising as a whole again inadmissible.
You have to be measured by your own words. Anyone who claims in their advertising "€ 1 donation for every CD sold" should be able to prove the donation afterwards. If there are indications of deception, the advertiser is obliged to provide information.
Section 5, Paragraph 1, Sentence 2, No. 4 expressly describes as misleading false information through statements or symbols that are in connection with direct or indirect sponsoring or that relate to the approval of the entrepreneur or the goods or services.
In some cases, CSR notices should also have to be checked under the aspect of codes of conduct (see code of conduct) or quality seals (see there), e.g. B. in advertising with the assertion “without child labor”, “no rainforest wood” with a sustainability seal and the like.
Child advertising is about advertising to children on the one hand, and advertising to children on the other.
Advertising with children, e.g. B. in the form of TV commercials in which children rave about a certain yogurt is generally permitted in Germany.
Advertising to children, on the other hand, is subject to special requirements, which in turn must be measured against advertising with children, since advertising with children is often intended to address children in particular.
Children are seen as a particularly vulnerable group of consumers. Advertising directed at children is to be checked against the standard of Section 4a, Paragraph 1, Sentence 2, Paragraph 2, Sentence 2 of the UWG, according to which it is unfair to take advantage of the (low) age. This continues to apply, but will be reinforced. For every business transaction and therefore for every advertising measure, it is necessary to check whether they are addressing a particularly vulnerable consumer group such as B. Judges children. If this question is answered in the affirmative, the yardstick from when something is to be judged as unfair is no longer aligned with the general average consumer, but with the average child as a consumer. Then z. For example, whether additional information may need to be given, as children are not as experienced in business and life.
Not every targeted influencing of minors is unfair; rather, it must be capable of exploiting their business inexperience. Minors can generally be assumed to be inexperienced. It expresses itself in the fact that minors are typically not yet sufficiently able to critically assess the offers of goods or services with regard to needs, value for money and financial consequences. Therefore, the advertiser must give the minor, inter alia. make the financial consequences of the conclusion of a contract sufficiently clear. Otherwise, this is considered to be unfair exploitation of inexperience.
- In a youth magazine, ringtones with an asterisk “x Ct. Per Minute "advertised. The BGH determined that this was unfair because the young people targeted in this medium could not know how long a download would take and thus could not estimate what the downloading of the ringtone would ultimately cost them. In this respect, this advertisement should also have indicated how many minutes the download takes and / or what the total price for the ringtone is.
- A data collection made from children for advertising purposes, e.g. B. in connection with a competition, is an unfair exploitation of their business inexperience.
Direct appeal to children to buy
In addition, according to Section 28 of the Annex, the direct request to children included in an advertisement to purchase the advertised goods themselves or to use the advertised service or to induce their parents or other adults to do so is prohibited.
This means the following test:
1. Immediate request "buy" or "tell your parents to ... buy"
It must be a direct and personal challenge to specific children. The extent to which quirky goods in front of the checkout in the supermarket are included has yet to be clarified. However, a sausage stand near a school yard should not be sufficient for an immediate invitation in this sense. Even the designation as “children's product” or the brand “children's” do not lead to inadmissibility. A collection campaign (“chocolate thalers”) in connection with sweets is not sufficient as an appeal to buy, unless the children are instrumentalized and additional elements such as peer pressure from school are added (“collects for the class trip” would probably be inadmissible). On the other hand, a Christmas wish list that should be handed in by the child at the toy store would be permissible, even if this creates a certain psychological pressure on the parents.
2. To children
Problem: what is a child? Is that every minor, up to the age of 18? Or is the limit at 14 years according to the Youth Protection Act? Since it is a matter of particular business inexperience and gullibility, only those up to 14 years of age should be considered among children within the meaning of Section 28 of the Annex. Young people are adequately protected by the special standard of the consumer term. Ultimately, however, this has to be decided by case law.
Example of advertising to children:
The BGH has banned an advertising campaign in which pupils could collect “Taler” by buying cornflakes packs and exchange them for sports materials for their school. This was justified by the fact that a kind of peer pressure arises, because nobody wants to be the one who does not promote school sports.
There are further special legal advertising bans against children in Section 22b Tobacco Act and Section 6 (5) State Treaty on the Protection of Young People in the Media with regard to alcohol advertising in the media.
In connection with the protection of minors and products that may only be sold to customers of a certain age (e.g. alcohol, cigarettes, gambling, certain films / computer games, porn / violent videos), age verification systems must ensure that these goods in particular cannot reach this protected group of addressees via distance selling, via the Internet or at a machine. The age verification system must be an effective barrier. The lack of such a system or an ineffective age verification system not only leads to traceability as an administrative offense or even as a criminal offense, but is also a violation of the UWG (Section 3 a UWG in conjunction with the respective protection standard).
Caution is advised with coupling offers, also known as opening offers. This is understood to mean the case that the sale of a (main) product offered on the market is to be promoted by offering the customer a secondary product that appears to be very inexpensive, but which he can only acquire if he also buys the main product.
Since the abolition of the addition regulation, the proximity to use is no longer absolutely necessary, since after all additions are generally permissible, provided that they are not excessively attracted and the price is not obscured by the addition or the coupling.
It is therefore important that the coupled offer is sufficiently transparent. The customer must be able to understand exactly what he is actually receiving at the low price and what is the prerequisite for receiving it. He must also be able to compare and receive the essential, value-determining information on the coupled or added goods.
So z. In the case of a mobile phone with a contract, for example, it is clear which device model is involved (technical details) in order to enable the customer to compare the price with the price that is usually to be paid for precisely this mobile phone. And he must be informed exactly about the requirement, e.g. B. how long the contract runs and under what conditions.
In the eye-catching highlighting of the particularly low price of an offer, the associated conditions must not be too difficult to recognize. As inadmissible z. B. assessed an advertisement in which a TV set was sold for 1 euro and the requirement linked to it, namely the conclusion of a two-year electricity supply contract, was only tiny, difficult to read and rotated by 90 ° on the side. Advertising for a specific cell phone model for € 1 without clearly indicating a contract with a minimum duration and its other conditions would also be inadmissible due to insufficient transparency.
Price-linked goods such as prescription drugs and, above all, books are still not allowed to be coupled with additions that go beyond “penny items”. So was z. For example, adding a “free” pocket calculator to a book that could be purchased without this calculator and that was subject to fixed book prices is viewed as inadmissible.
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