Admonishment (Warning Letter)
We herewith give you notice that …… has commissioned us to assert her interests in respect of her company.
Our client has recently noticed your advertisement in your supermarket:
In your highly emphasised advertising poster you state the following:
You have attached your advertising poster to numerous advertising supplements of diverse competitors, including the supplement of our client.
Your advertisement constitutes not only an infringement of the rights of our client who has a competitive relation to you under §§ 1, 2, 3 of the Act against Unfair Competition, but also a serious violation of the Act on Discounts (Rabattgesetz). Furthermore, you are misusing the good name of our client, which is protected as a German trademark. By means of your advertisement, you are making the target group believe that your offer is the most favourable one among all available products, which is not true. Therefore, your advertisement is misleading. Moreover, we are concerned here with a case of deliberate and obvious imitation of an advertising and exploitation of the reputation of another. In your advertisement, you exploit the high degree of recognition of our client’s brand and its excellent reputation in an inadmissible manner in order to promote your competitive products. Our client does not wish to have her name associated with your products without her prior consent. Furthermore, your advertisement is inadmissible also from the point of view of comparative advertising within the meaning of § 2 of the Act against Unfair Competition. Comparative advertising may in principle be permitted since the implementation of the European directive on comparative advertising, but it is necessary that all criteria set forth in § 2 of the Act against Unfair Competition are fulfilled. This is not the case in your advertising, since it does not fulfil the above-mentioned criteria. Your advertising is misleading and not objective. Your advertisement furthermore violates the Act on Discounts since you announce or grant a discount by lowering the price of already low-price products below normal standards for competitive purposes, which is prohibited by the Act on Discounts.
On account of your illegal advertisement contrary to fair competition you are obliged to forbearance, disclosure of information and indemnification of damages in favour of our client. On behalf of and by order of our client we herewith order you to surrender to us on behalf of your company the enclosed cease-and-desist declaration towards our client. Furthermore, we order you to cease and desist your advertising i m m e d i a t e l y. The right to a further indemnification is hereby reserved. The cease-and-desist declaration is to be delivered to our office in Hanover until
1st December 2000, 2 p.m.
Should we not receive the above-mentioned declaration or should we receive it in an incomplete form and not in time, we shall recommend that our client should immediately bring legal suit against you. As a matter of form, we would like to point out that only a declaration containing a contract penalty insurance dispels an assumption for the possibility of continuation or repetition of the unlawful practice. It does not suffice to stay your advertisement nor to surrender a cease-and-desist declaration without a contract penalty insurance in order to satisfy our client’s need for legal protection. Due to their nature, matters relating to competition law need to be handled urgently (cf. § 25 of the Act against Unfair Competition). Since you are familiar with both the circumstances and the legal position, an extension of the time limit is out of the question right from the beginning. We reserve the right to a separate assertion of claims to disclosure of information and indemnification.
Michael Horak, graduate engineer