Industrial property and unfair competition
Competition law is meant to secure fair competition in markets, to encourage competition and to protect consumer interests.
Among its main aims is an open and fair market on which companies have equal opportunities to offer products and services and on which consumers can choose from a range of options. Certain business practices are therefore prohibited, for instance in advertising. That gives the field high practical relevance, which frequently shows up as warning letters from competitors.
What it covers in detail
- Advertising claimsMisleading statements, price advertising, test results and environmental claims. The most frequent trigger for warning letters, because breaches are easy to document.
- Comparative advertisingComparing yourself with competitors is permitted but tied to conditions. Where they are not met, the comparison turns into disparagement.
- Unsolicited advertisingAdvertising by email, telephone or messenger without the necessary consent. Competition law and data protection law meet here.
- Signs and imitationProtection against imitation supplements trademark and design law where a registered right is missing or does not apply.
The rights and how they differ
Industrial property covers more than unfair competition law. Which right carries depends on what is to be protected.
A trade mark protects a sign for particular goods and services. It can be renewed indefinitely as long as it is used. More on this under trade mark application.
A design protects the appearance of a product, that is its shape, colour, lines and surface. It requires novelty and individual character but is examined by the office only as to formalities. Protection runs for up to 25 years. Anyone who has already shown their product can still file within the twelve-month grace period.
Patents and utility models protect technical inventions. They follow their own rules and their own filing procedure.
Supplementary protection under unfair competition law steps in where no registered right exists. It requires more than an imitation, though, and is harder to establish in proceedings. It is therefore hardly a permanent solution, but it serves as a stopgap while no registration is in place.
A campaign in preparation?
We look at the claims before a competitor does.
Have your advertising reviewedFrequently asked questions
Who is even entitled to send us a warning letter?
Alongside competitors, certain associations and qualified entities come into consideration. Not every warning letter comes from someone entitled, and not everyone entitled is asserting a claim that exists. Checking standing therefore comes first.
Where are the limits in advertising?
Misleading statements, impermissible comparative advertising and unfair harassment are prohibited in particular, for instance advertising without consent. The practical relevance is high because breaches are easy to document and competitors watch for exactly that.
What does a registered design protect?
The appearance of a product, that is its shape, colour, lines and surface. It requires novelty and individual character. The office examines neither, it only checks the formalities, which is why the value of a design only shows in a dispute. Protection runs for up to 25 years in five-year steps. The twelve-month grace period matters: anyone who has already shown their product can still file within that period, but not afterwards.
What applies if we hold no registered right at all?
Then supplementary protection under unfair competition law comes into consideration. It does not apply to every imitation, it additionally requires the product to have competitive individuality and particular circumstances to be present, such as deception about origin or exploitation of another reputation. This protection is weaker than a registered right and harder to establish in proceedings.
Is a review worthwhile before the campaign starts?
As a rule yes. A warning letter after launch often costs the campaign as well as the legal fees, because claims have to be changed at short notice. A review beforehand is considerably cheaper.