German Unfair Competition Law (Lauterkeitsrecht) German unfair competition law (Lauterkeitsrecht) is regulated under the Gesetz gegen den unlauteren Wettbewerb (UWG – Act Against Unfair Competition). It aims to protect fair business practices and prevent deceptive or exploitative behavior in the marketplace. A key principle in unfair competition law is slavish imitation (sklavische Nachahmung), which refers to the unauthorized copying of a product in a way that unfairly exploits another company’s investment and market position.
1. Legal Framework of Unfair Competition Law in Germany1.1 Key Legal Provisions in the UWGThe UWG provides a structured approach to unfair competition, including: - § 3 UWG – General prohibition of unfair commercial practices.
- § 4 UWG – Specific forms of unfair competition, including deception and exploitation of reputation.
- § 5 UWG – Misleading business practices.
- § 6 UWG – Comparative advertising regulations.
- § 7 UWG – Unsolicited advertising and consumer protection.
- § 9 UWG – Liability and damage claims for unfair practices.
The prohibition against slavish imitation is mainly derived from § 4 Nr. 3 UWG, which prevents unfair copying of products that mislead consumers or exploit the original producer’s market position.
2. Definition and Legal Criteria for Slavish Imitation2.1 Definition of Slavish ImitationSlavish imitation refers to the close copying of a product in a way that takes unfair advantage of its established reputation or market success. Key elements of slavish imitation: - The product is copied so closely that consumers may associate it with the original.
- The imitation takes advantage of goodwill or investment from the original producer.
- The copy lacks sufficient creative distance and is nearly identical.
- The imitation may cause consumer confusion or unfairly shift market dynamics.
2.2 Distinction Between Lawful and Unlawful ImitationNot every imitation is considered unfair competition. Key principles: - Lawful imitation – When the copied product contains purely technical or functional elements that cannot be monopolized.
- Unlawful imitation – When the copy benefits from deception, confusion, or unfair exploitation of another’s reputation.
⚖️ Example Case: BGH, Urteil v. 20. September 2018 – I ZR 71/17 ("Herrnhuter Stern") The court ruled that a 1:1 copy of a traditional Christmas decoration violated unfair competition law, as it exploited the goodwill of the original brand.
3. Types of Slavish Imitation and Their Legal Consequences3.1 Direct Imitation (Direkte Nachahmung)A nearly identical reproduction of the original product. - Allowed if: The design is not distinctive or protected by other IP rights.
- Prohibited if: The copy misleads consumers or unfairly exploits the original’s reputation.
⚖️ Example Case: BGH, Urteil v. 23. Oktober 2003 – I ZR 122/00 ("Puma-Schuh") The removal of the Puma logo from a copy of a sports shoe was not enough to prevent consumer confusion, making it an unfair imitation.
3.2 Modified Imitation (Abgewandelte Nachahmung)A slightly altered version of an original product that still maintains strong similarities. - Allowed if: The modifications create a clear visual or functional distinction.
- Prohibited if: The changes are merely superficial and the core design remains a copy.
⚖️ Example Case: OLG Frankfurt, Urteil v. 6. Juli 2021 – 6 U 40/21 A furniture manufacturer slightly changed the shape of a designer chair, but the overall impression remained the same. The court ruled that it was still an unfair imitation.
3.3 Exploitation of Reputation (Rufausbeutung)A copy uses the goodwill and brand recognition of an established product to attract customers. - Allowed if: The imitation clearly differentiates itself from the original.
- Prohibited if: The product appears deceptively similar to the original and misleads consumers.
⚖️ Example Case: BGH, Urteil v. 15. Dezember 2016 – I ZR 197/15 ("Bounty-Riegel") A chocolate bar with nearly identical packaging was ruled to be an unfair exploitation of the original brand’s reputation.
4. Legal Remedies Against Slavish ImitationBusinesses affected by unfair imitation can take the following legal actions: 4.1 Cease-and-Desist Orders (Unterlassungsklage, § 8 UWG)Companies can request that the imitator immediately stop producing or selling the copied product. 4.2 Damage Claims (Schadensersatz, § 9 UWG)Original manufacturers can sue for financial losses caused by unfair competition. 4.3 Product Confiscation (Beschlagnahme, § 19 UWG)Courts may order that the copied products be removed from the market. ⚖️ Example Case: BGH, Urteil v. 26. Februar 2009 – I ZR 219/06 ("Ersatzpatronen") A company producing third-party printer cartridges was held liable for misleading consumers into believing they were purchasing the original brand’s product.
5. The Role of Intellectual Property Lawyers in Unfair Competition LawSpecialized IP and competition lawyers provide legal support in: - Developing legal strategies to prevent slavish imitation.
- Drafting contracts that protect product design and branding.
- Filing lawsuits against competitors engaged in unfair imitation.
- Advising on intellectual property protection, including trademark, design, and patent registration.
- Negotiating settlements in cases of disputed imitation.
6. German unfair competition lawGerman unfair competition law effectively protects businesses against slavish imitation by preventing unfair market practices. Companies must differentiate their products sufficiently to avoid legal risks. The legal system balances fair competition and consumer protection, ensuring that intellectual property and brand reputation are safeguarded. IP and competition lawyers play a crucial role in enforcing these laws, helping businesses maintain a competitive edge without falling victim to unfair imitation. |