Warning Letters in Germany
Written warning letters are really common in business matters as well as in labour law matters in Germany. An overview regarding the warning notice topic from a commercial point of view is given in the following text. In case you would like to have more information about the kind of notice of warning taking place in a working environment, please visit our corresponding websites. (http://www.arbeitsrechthannoveranwalt.de/ https://www.diearbeitsrechtler.com/).
Written warnings in business matters are most frequently used to avoid expensive legal trial proceedings. In a notice of warning is generally requested an official authorization, as a milder measure of protection against a legal infringement of protected rights.
If the right-holder is eager to fully keep his rights, he must be able to proceed against potential infringers. The party cautioned shall react to the warning letter in reasonable time-limits. If he does not make a cease-and-desist declaration, and the right-holder can demonstrate the infringement of his rights, it is particularly easy to obtain a provisional ban in the form of a prohibition order, within a relatively short period of time (a few days up to a month).
It is recommendable to avoid judicial proceedings in case of clear infringement of rights, since the associated expense risks can be very high.
Recommendations: How to avoid warnings in the business environment, with or without an Online-Shop
Many entrepreneurs are not aware of the highly expensive risks that an infringement of third parties rights could involve; unfortunately, the excessive costs are often accompanied by expensive and unfortunate legal disputes that could definitely be avoided. The path to an unwanted injunction, disclosure or compensation for damages is immediate with the consequence of an overall expense of thousands and thousands of Euros. This is obviously avoidable, if the entrepreneur is informed from an early stage about the possible risks and consequences. This is the only way to ensure that their marketing measures and information on advertising, on the website or in the online shop as well as the use of patents, designs, trademarks, names, commercial symbols and copyrighted products comply with the legal requirements and do not violate rights of third parties.
Our law firm offer you a special kind of research, so-called freedom-to-operate research (FTO searches). For further questions do not hesitate to contact us at any time.
How does a written warning works?
In order to assert and forbid certain legal outrageous infringements, the warning is generally issued as proven tool. It may relate, inter alia, to the following legal areas:
- Competition and advertisement Law;
- Copyright Law;
- Name and Trademark Law;
- Utility models and registered design Law;
- Patent Law;
- Internet Law;
- Civil Law;
- Penal Law and Administration Law.
The procedure of a notice of warning is generally as follows:
- The infringer company receives a written warning from the attorney of the mitigating party; in this latter the violation will be described in detail.
- The company is requested to issue a declaration to cease and desist (often pre-formulated) for out-of-court dispute resolutions within a certain period of time. In this case, the company commits itself to refrain from such behaviour in the future. This can be the case of the unwanted sending of promotional emails or the use of specific products names. Otherwise, a contractual penalty shall be paid from the opposing party.
- In the declaration to desist, the company commits itself to compensate all the legal fees incurred in the legal dispute within a certain period of time.
Once the other party (the infringer) has submitted the declaration to cease and desist and, after the payment of all the legal fees in the determined period of time, the case can be considered closed and it is not necessary to take legal action.
On the other hand, if the infringer decides to act differently, the written warning could lead to a legal injunction or a compensation for damages proceeding.
Examination of written warnings:
In case your company has just received a written warning, please make sure to contact an attorney for a first legal consultation and examination. The following questions are the most frequently asked:
- Is the infringement claimed in the warning, legally justifiable? Otherwise, a counter-admonition could be achieved, for instance.
- Does the text proposed by the condemning party for the declaration to cease and desist, correctly reflect the infringement or does it involve additional risks?
- Is it possible and advisable in the specific case to make a declaration to cease and desist, which is more favourable to the warned party?
- Is the cost of the fee assessment (estimated by the other party´s attorney) excessive?
Please do not hesitate to contact us for further questions. One of our experts will assist and represent you for any concerning legal matters.
Examples of notices of warning:
Written warnings concerning the violation of competition law provisions
In most of the cases, competing companies are warned because they breach certain competition law provisions.
The defence itself against unfair competitive practices is regulated by the Act against Unfair Competition (UWG) in Germany. Among other things, it aims to the protection of market participants and regulates the interests of a genuine competition.
Warning letters regarding infringement of competition law matters may take place as follows:
a) Prohibited Advertising
In many cases, warnings are made by competitors or consumer protection associations because a company advertises customers with misleading advertising (misleading in terms of pricing or product benefits).
Therefore, in order to prevent unwanted notices of warning, companies should check whether their information in advertising brochures, advertisements, media publications and public representations are correct within the meaning of competition law. In this case, the demarcation between a permissible promotionally effective product or service description and an unauthorized misleading indication may be difficult.
b) Unreasonable Harassments
Example 1: Unsolicited Advertising E-mails (Spam)
More than 60% of the total e-mail traffic is advertising. However, the sending of unsolicited advertising e-mail is unlawful if – as in most cases- consent is not given by the subject of the data. This is an unacceptable harassment, which can involve considerable damages.
Once hypothesized that an employee with his or her own e-mail account in a medium-sized company only spends about 5 minutes of his working time viewing and cancelling unwanted advertising e-mails, this time is added up to 200 working days, around 16.7 full-time hours per year and employees. For this reason, more and more companies are taking advantage of the possibility of taking legal action against the senders of these harassing advertising e-mails. The amount in disputes raised by the courts in the event of warnings regarding unsolicited advertising emails is between 3,000 and 10,000 euros. This is justified by the fact that the senders of these advertising e-mails, due to the general low costs invested in the advertising, create concrete competitive advantage against other companies. An unsolicited promotional email is considered illegal if the sender has not asked for prior consent; in case of legal dispute, the sender must prove evidences of permission.
Example 2: Telefax-Advertisement
An unsolicited fax-advertising is unlawful and can be warned by the entrepreneur in question. In this case, the personal costs involved in the advertising action regard the paper used for the fax, the materials used in order to print the fax message, and obviously the working-time wasted in viewing and cancelling the unwanted material.
c) Infringement of competition law provisions
It is really common for inexperienced company that sells through their website or for provider of online and eBay shops to receive warning letters addressing the infringement of competition law provisions. It is important to know that also in Internet, numerous laws have to be taken into consideration and have to be respected. Following, a couple of typical examples:
Example 1: Infringement of the statutory imprint obligation (so-called “Impressum” in German)
Pursuant to the provisions of the so-called “Telemediengesetz “– TMG (Telemedia Act), service providers, including operators of business websites and online shops, have to keep certain information promptly accessible and constantly available on their pages. Examples include:
- The name of the company;
- The name of the authorized representative
- The address of the company,
- Information on rapid contact, e.g. phone number, fax number, e-mail address
- VAT identification number and register numbers.
If the statutory imprint (Impressum) is not included in the website of an online shop, or in an eBay store (even if partially), the service provider can be warned. A legal dispute in this matter can normally lead to a significant expense of five thousand euro per case. The attorney’s fees are also correspondingly high. Companies that appear on the Internet should therefore ensure that their imprint complies with the legal requirements; these can be found in the German § 5 General Information requirements of the German “Telemediengesetz”.
Example 2: Infringement of the provisions on distance sale
The so-called “distance selling contracts” (or purchase/employment contracts) and financial services concluded between consumers and contractors by telephone, internet or other means of remote communication, are subject to legal regulations.
In these particular kinds of contracts, the consumer must, for example, be informed of the possibilities of withdrawal or return of the product/service. Practically, however, many operators of online and eBay shops do not meet their instructions and information requirements. Often the operators themselves use cancellation policy and terms and conditions which frequently violate legal regulations and lead to possible notices of warning.
A legal examination could help avoiding such problems. A detailed overview of the entrepreneurial information requirements (revocation and return rights included) can be found in the German Civil Code (BGB), art. 240 ff. EGBGB and in the BGB-Decree on Information Duty.
This topic is considerably controversial, and for this reasons we would recommend you to contact one of our attorneys for further specific questions.
2. Warning concerning Trademark Law infringements
Warning can also be issued in the case of trademark rights related breaches.
A trademark entered in the Trademark Register allows companies to obtain a monopoly on a description of the respective goods and services.
However, many companies do not ask for a legal consultation until it is too late, and they do not research if they are actually violating third parties rights.
A subsequent collision between several labels (trade names, business names, company names, etc.) can however, endanger the existence of the company. The risk of a further legal injunction or a compensation for damages proceeding can be the result of such attitude.
It is therefore advisable to examine at an early stage whether the term used are leading to the violation of third parties rights: this is possible by carrying out a trademark research at the German Patent and Trademark Office (DPMA). It is obviously the case to register a trademark only if this has not been entered in the official register yet.
3. Warning concerning Copyright infringements
Even in the case of copyright violations, the notice of warning is generally issued by the copyright owner. The Copyright Act (UrhG-Urheberrecht) protects the author in his intellectual and personal relation to the work as well as in the utilization of this production. With the world “work” we intend language, music, light, film, and products of fine applied art. The copyright also ensures reasonable remuneration for the use of the work.
By the creation of advertising, logos, web pages, etc. the extent of utilization of the material should be previously agreed with the commissioned agency. If the company uses graphics and photos, for example on the Internet Homepage or at eBay auctions, it should in any case check if there are any risks of infringement of potential third parties copyrights. The same applies to the utilization of music, which is played, for example, on Internet pages, shops or warehouses. It is important to make legal agreements with the author or with the rights owner, in order to avoid potential notices of warning.
In any case: a legal advice is always advisable at an early stage
Regardless of whether the company itself is has received or issued a notice of warning, the advice of a specialized attorney is always recommendable. Following, all the critical topics that should be examined by an attorney, in order to definitely avoid the chance of a warning letter:
- The name of the company
- The name of the product or brand
- The design of the product
- The technical design of the product
- Information in business letters
- Imprint in print media
- Information on websites and online shops
- Information in the company's advertising messages.