Protection of competitors, consumers and the general public--The new German Act against Unfair Competition

Legal context. In 2004 the German legislature passed the newGerman Act Against Unfair Competition, replacing the old Actof 1909. By ensuring effective protection against unfair competitionpractices the Act promotes honest and conscionable conduct inthe marketplace for the benefit of competitors, consumers, andother market participants. Key points. The main provision of the Act in section 3 prohibitsunfair commercial practices in the marketplace which are capableof distorting competition to the detriment of competitors, consumers,and other market participants. The general clause is complementedby a non-exhaustive list of categories of commercial practicesconsidered to be unfair under the more recent 1909 Act caselaw. Further provisions deal separately with the categoriesof misleading, comparative, and intrusive advertising, transposingthe relevant provisions of several European Directives intoGerman law. The Act also encompasses provisions on civil remediesand on litigation such as procedural regulations concerninginjunctive relief actions, competence and jurisdiction, andthe role of mediation boards. Practical significance. The prime focus of the new Act is tofurther liberalize German unfair competition law after the repealof the laws governing discounts and bonuses in 2001. Furthermajor accomplishments of the new Act include the explicit emphasisof a high level of consumer protection: for the first time theconsumer is explicitly mentioned together with competitors andthe general public as a subject of protection under unfair competitionlaw in Germany (tripartite protection). Furthermore, the Actprovides greater transparency than the old Act by introducinga catalogue of definitions and by codifying established caselaw with respect to certain categories of commercial practicesconsidered to be unfair.