At a glance
- Objective criticism remains allowed
- Unprovable statements about competitors are risky
- Targeted obstruction is unfair
Section 4 UWG protects businesses against competitors who use unfair means to push them out of the market. For imitation (Section 4 no. 3) see Product imitation.
Denigration (no. 1)
Denigrating or disparaging a competitor’s marks, goods, services, activities or circumstances is unfair, including by value judgements. Objective criticism remains permitted; the line is crossed when a statement goes beyond what is necessary for an objective comparison. Humour and satire are not unfair per se; freedom of expression must be weighed.
Disparagement (no. 2)
Spreading unprovable factual statements about a competitor that may damage its business or credit is unfair. The person making the statement bears the burden of proving its truth. A special case is the unjustified IP infringement warning sent to a competitor’s customers.
Targeted obstruction (no. 4)
Obstruction is part of competition; it becomes unfair when it is aimed at preventing the competitor from developing rather than promoting one’s own performance. Examples: intercepting customers, poaching with unfair means, boycott calls, typo domains, keyword ads that suggest an economic link, fake negative reviews, predatory pricing in exceptional cases, bad-faith trade mark filings.
Case examples
A manufacturer tells a competitor’s dealers that the rival’s new drills infringe “our patent” and will soon be banned. No proceedings exist and the patent does not cover the product. This is denigration (§ 4 No. 2 UWG) and an unjustified IP warning.
A former distributor registers the manufacturer’s product name as its own trade mark after the contract ends and demands licence fees. The filing serves obstruction; cancellation and injunctive relief are available.
A restaurateur has acquaintances post bad reviews about the competitor next door. This is targeted obstruction and disparagement.
Remedies
Injunction and removal (e.g. retraction towards recipients), damages under Section 9 UWG and tort claims under Sections 823, 824, 826 BGB. For ongoing campaigns, a preliminary injunction is usually the tool of choice.
