GermanyVerbot unlauterer geschaeftlicher Handlungen und Mitbewerberschutz (General Clause and Competitor Protection)
Gesetz gegen den unlauteren Wettbewerb (UWG), §§ 3, 4
In force since .
An unfair competition rule binding private bodies.
- Criminal exposure
- No
- Private right of action
- Yes
- Obligation class
- Prohibition
- Audit expectation
- none
What it requires
- Do not denigrate or disparage a competitor's identifying marks, goods, services, activities, or personal or business circumstances.
- Do not assert or spread unproven facts capable of damaging a competitor's business or credit.
- Do not imitate a competitor's goods or services in a way that causes avoidable confusion about origin, unfairly exploits or impairs their reputation, or was achieved through dishonestly obtained knowledge or documents.
- Do not target a competitor for obstruction, which can include automated collection of that competitor's content or data aimed at impeding its business.
These lines are LexLint's reading of the law's text. Also read by: Bundesgerichtshof, judgment of , I ZR 224/12 (Flugvermittlung im Internet) (recorded ).
Who enforces it
Enforcement body
Claims to removal and injunction belong to competitors, qualified business associations, qualified consumer associations, and chambers and trade unions within their tasks (UWG § 8 Abs. 1 and 3).
Settledness
- As of
- Case link
- https://www.bundesgerichtshof.de/SharedDocs/Entscheidungen/DE/Zivilsenate/I_ZS/2012/I_ZR_224-12.pdf?__blob=publicationFile&v=1
- Case citation
- Bundesgerichtshof, judgment of , I ZR 224/12 (Flugvermittlung im Internet)
- Open questions
- Does a robots.txt exclusion, a login or a rate limit that keeps an automated collector away from a site count as a 'technische Schutzvorrichtung' whose circumvention makes the obstruction unfair under § 4 Nr. 4 UWG, when the Bundesgerichtshof held that terms of use accepted by ticking a box do not equal one?
- Is a collector that offers a different service from the site operator a 'Mitbewerber' whom § 4 Nr. 4 UWG protects, when only the competitor individually affected may invoke the provisions that protect competitors?
What it makes you log
Logging duty
Section 3 prohibits unfair commercial acts and section 4 lists unfair acts against competitors, including targeted obstruction of a competitor. Neither imposes a duty to create, keep, produce or review a log or record.
- Kind
- None
- As of
What this law does
Unfair commercial acts are prohibited generally, and a commercial act directed at or reaching consumers is unfair where it does not conform to professional diligence and is capable of materially influencing the consumer's economic behaviour, alongside a fixed annex of acts that are always unlawful toward consumers.
Separately, a person acts unfairly toward a competitor by denigrating or disparaging that competitor's identifying marks, goods, services, activities, or personal or business circumstances; by asserting or spreading unproven facts capable of damaging a competitor's business or credit; by offering goods or services that imitate a competitor's, where that causes an avoidable deception of buyers about commercial origin, unfairly exploits or impairs the reputation of the imitated goods or services, or was achieved through dishonestly obtained knowledge or documents; or by targeted obstruction of a competitor.
A person who intentionally or negligently commits an unlawful commercial act under these provisions is liable to a competitor for the resulting damage. The Zweites Gesetz zur Änderung des Gesetzes gegen den unlauteren Wettbewerb, which set sections 3 and 4 out anew, takes effect the day after its promulgation. The Act was issued in the Federal Law Gazette on .
When LexLint raises it
When your app profile says your app crawls the web.
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Page updated .