Entrepreneurs have to consider a variety of laws and regulations in the course of business. However, they are often subject to mistakes, especially in the maintenance of an online shop or when selling on platforms such as eBay or Amazon, which in many cases are followed by a warning from competitors regarding competition violations. Those mistakes could often be mastered and solved if at least regularly used, contractual regulations in the General Terms and Conditions (GTC) or mandatory information in the imprint were checked by a lawyer.
To such honest entrepreneurs it is a nuisance finding out that sellers on eBay or Amazon appear under the guise of a private seller and declare commercial sales as private sales. The advantage of such an approach is obvious as it is known that the revocation of sales contracts in private sales is impossible. Many consumers are fooled by such executions.
At least as upsetting for honest entrepreneurs are competitors who advertise leading positions or top products in their online shop that they actually don't have. Above all, the use of superlatives such as "cheapest offer" or "market leader" or the combination of an offer with games and lotteries in order to increase their own sales and disadvantage competitors, is upsetting for the honest businessman. In this context it is another nuisance, when competitors set limitations of liability and shortenings of warranty periods in the terms and conditions or deprive additional costs for shipping and packaging in order to gain competitive advantages.
Rights of an entrepreneur
The practices of entrepreneurs are essentially regulated by the Civil Code (BGB) and the Unfair Competition Act (UWG). On the one hand, the entrepreneur can derive from these legal regulations which contractual regulations he can use against consumers and, on the other hand, which behavior he is not allowed to act on. The UWG also provides the entrepreneur with a legal framework to counteract the business conduct of a dishonest competitor.
In the event of any competition infringement by a competitor, the entrepreneur may request (i) omission, (ii) information about the scope of the anticompetitive act, (iii) damages for anticompetitive conduct and (iv) refund of legal fees for prosecution.
The most important claim of the entrepreneur, the cease of the anticompetitive business practices of the competitor, can be prohibited not only in a lengthy legal process, but after an early, pre-trial warning even within a few hours by a preliminary injunction. It is crucial that no more than a month passes between gaining knowledge of the competition violation of the competitor and the application for a preliminary injunction. This tool also allows entrepreneurs to act against short-term advertising of a competitor who is only running the advertisement for a few days. The claim for damages can be reasonably asserted and enforced without further ado in a principal proceeding. However, it is usually difficult to quantify the damage in terms of amount, because it would have to be shown to what extent the concrete, anticompetitive act has led to an advantage for the competitor.
The preliminary injunction provides you with the opportunity to first achieve a faster but only provisional regulation of the claim of injunctive relief. The injunction is usually issued by the court on the day of application. If the competitor accepts this injunction as part of a final declaration, the claim for injunctive relief has been settled. An additional principal proceeding must not be carried out as far as the competitor regulates the three other claims for (i) information, (ii) damages and (iii) refund of legal fees out of court. Otherwise, a principal proceeding to enforce these claims of the entrepreneur would be appropriate.
Because of the high object values in court proceedings for competition violations we can only strongly advise you to ensure an examination of the case by a lawyer. Although, because of the high object values, a lawyer will be obligatory because of the jurisdiction of the regional courts based thereon, risk considerations and cost-benefit considerations can be made in advance especially in the case of received warnings.
We are glad to advise you before the opening of an online shop or the development of advertising measures in order to avoid warnings from competitors because of competition violations. We extensively verify the legality of the Terms and Conditions that you request, either on the basis of a preliminary draft by you or on the basis of the ideas expressed by you. By doing so, you can significantly reduce the risk of pre-trial warnings, which in the event of the offense usually result in significantly higher legal and court costs than in the case of a review / creation of terms and conditions by us beforehand. Incidentally, the risks of pre-litigation warnings also exist if an entrepreneur simply copies the terms and conditions of another entrepreneur, because after all, it is often difficult to tell whether they have been prepared or examined by a lawyer.
If you identify sellers on eBay or Amazon, who sell goods in your business domain but act as a private seller, we would like to represent your rights in this matter. In the event of a legitimate warning due to violation of competition, the dishonest competitor must refund the attorney's fees, if the competitor's liquidity is sufficient so that no costs incur for you.
In this case, we would like to execute a pre-trial warning for infringement of competition for you and enforce your rights also in the context of preliminary injunction and / or in the course of a (subsequent) principal proceeding against third parties.
We have already conducted a large number of legal proceedings for competition violations in regional courts and higher regional courts throughout Germany. Some court decisions made by us before regional courts have subsequently been confirmed by the higher regional courts and the Federal Court of Justice respectively. In the last instance, of course, we had to resort to a lawyer admitted to the BGH, but we also continued to accompany the civil proceedings there.
However, we have also fended off warnings from competitors who have been unjustified and also inadmissible because of legal rights abuse. In this context, we have even directly used lawyers who have been liable for fraud and needed to refund legal fees and court costs because of the interaction with the competitor and the execution of a high amount of warnings.
If you have the intention to have your own contractual regulations or an appearance on the internet reviewed, then we are of course happy to help. However, we are also happy to assist you in issuing warnings or with received warnings received because of competition violations. In this case, you can simply contact us by phone or e-mail. We are very happy to help.