At a glance
- Section 8c UWG lists seven indicators
- No claim, counterclaim for defence costs
- Penalty may not be enforceable
Not every warning letter serves competition. Those primarily seeking fees and penalties act abusively. Since December 2020, Section 8c UWG lists indicators:
- the claim primarily serves to generate reimbursement or penalties
- a competitor sends a large number of similar warnings disproportionate to its business
- the value in dispute is set unreasonably high
- obviously excessive penalties are demanded
- the proposed undertaking obviously goes beyond the infringement
- infringements that could have been pursued together are pursued separately
- several infringers are not pursued together without good reason
Consequences
The sender has no injunctive claim and no cost reimbursement; the recipient may claim its defence costs (Section 8c(3) UWG). A penalty under a declaration based on an abusive warning may not be enforceable (BGH, 7 March 2024, I ZR 83/23). Associations that systematically abuse warnings may be removed from the register.
Case examples
A newly founded shop with little turnover sends over 200 warnings within two months. The number is out of proportion to its business, an indication of abuse under § 8c(2) UWG.
The BGH confirmed in 2024 that a contractual penalty may lapse if the original warning was abusive; an overall assessment is required (7 March 2024, I ZR 83/23).
A warning demands EUR 20,000 per breach for a simple labelling error. Grossly excessive penalties are another indication of abuse.
What we do
We research comparable cases, analyse publicly available information about the sender and use court registers to prove mass warnings.
