After we have repeatedly reported on legal adjustments in eCommerce and the associated warning risks in recent years, there is finally something positive: The legislature has now after long periods of announcement (last Printed matter 19/12084) concrete steps taken against the warning industry and so did the Bundestag “Law to Strengthen Fair Competition” am 10. September 2020 accepted.
So that one thing is clear: The warning with an injunction in connection with unfair competition is completely justified and sensible per se. However, the way it has been used in recent years in connection with the many legal changes, has little to do with this sense.
So what has changed? I would like to briefly summarize this like a specific one (ugs.) Warning on a specific example that was partly rhymed for more exciting readability expired:
An online retailer, der u.a. sells its goods on Amazon and eBay, has failed to make the link to the EU dispute settlement portal clickable (and, a link is a link only then, if it is directly clickable. It is not sufficient, if the URL is given there….here, too, the question of proportionality arises). This falls to lawyer S. -let's say from Berlin- in one of the probably day-long searches. He takes the address of the dealer from the imprint, notes everything in his system and chooses two things:
- The serial letter, the case “forgotten link” fits
- A competitor from his pool (alleged) represented clients
Now the details of the dealer, the violation and the competitively disadvantaged client cast in letter form, provided with a separate cease and desist declaration, sent to the delinquent in advance by fax and parallel by registered letter.
The dealer now recognizes several things at the same time:
- That he made a mistake, who is now causing him trouble
- That the lawyer S. Asks him to send the signed declaration of cease and desist with penalties by date X., otherwise legal proceedings would be opened immediately
- That lawyer S. from him the reimbursement of the expenses in connection with the offense in the amount of - let's say- € 350,- until appointment Y calls.
Now there are several ways in which the wrongdoer can act, we don't want to look at all of them. Generally the species only have, that the error should be corrected and as soon as possible, because this yes (usually) can really be warned.
- The dealer does nothing.
- The dealer signs the declaration of cease and desist with penalties and sends it to lawyer S. He also transfers the costs.
- The dealer signs the declaration just mentioned and sends it with another document in which he explains, that this happens without recognition of a legal obligation and purely out of an interest in getting things done. However, he does not transfer the lawyer's fees.
What speaks for / against these three ways?
- The trader risks, that lawyer S. really initiates legal proceedings, since the crime was undoubtedly committed. There is therefore the risk of having a lot of effort and expense depending on the opposing side.
- With this, the dealer now risks being asked to pay properly for the rest of his business life for a similar case in the entire business operation, as he has contractually agreed to pay an amount defined in the declaration to the competitor for EVERY recurrence. Indirectly he showed the lawyer, that you can earn money with this warning. Furthermore, the dealer will now certainly be under close observation.
- Here with the dealer does this, what the lawyer ls. Law can demand. Sending the declaration. Due to the dealer's restriction, there is at least one possible dispute. It could be with the cost, that the lawyer will try to enforce them.
I certainly cannot and will not advise you on a specific path, as this always depends on the specific case. But I can say from experience and research, that way 3 is probably used very often.
Now back to the change in the law.
From the above. Example can be assumed, that this is less about a real damage to competition by a competitor, but about employment for the purpose of earning a living. This has been a thorn in the shoe for traders for a long time and the legislature has also repeatedly expressed it, that changes were imminent here. This has now been done in one readable step.
So what has changed?
- The aspect of making profit is to be withdrawn. The reimbursement of the warning costs should be in the event of a violation of information- and labeling requirements as well as data protection violations by companies with less than 250 Employees are no longer permitted. This means that the direct source of income for many warning letters no longer applies.
- Qualitative requirements for the injured competitor or. Warning persons are increased. For this, the injured party must operate a real and relevant competitive business and not just one “Alibi-Shop” operate, to be considered a competitor. In the case of business associations issuing warnings, their reliability and purpose are regularly checked by the Federal Office of Justice.
- Simplification of the presentation of abusive warnings. Examples are provided for this, which prove this.
- Claim for damages by the abusive warned party
- In future, the place of jurisdiction is the place of jurisdiction of the person who has been warned
My assessment
Even if I read in some places, that there are critical voices, they mean, that this is too spongy, too imprecise, too far-reaching and an impairment of serious warning people, I see the change in the law as an extremely positive step. However, I see this less from the eyes of the lawyer and more from the eyes of the entrepreneurs and mainly small businesses. Because these little ones are the target of dubious warning letters. Not a dubious lawyer / Warning association would come up with the idea of warning Amazon or Otto. It's the small traders à la “Missi's fabric store” (fictitious!), those of the threatening language and buzzwords like “Injunction”, “legal action”, “out-of-court settlement”, “judicial help” etc. intimidated, act and meet the demand.
Now it depends, that companies like the above. Fabric shops also know about this change in the law, because one can hope, that dubious bodies stop the fee claim from the outset - and thus the general warning system is less -, but of course you can't be sure.
It remains to be seen what exactly this change will bring.
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