In its reading on 10 September 2020, the German Bundestag adopted an amended version (19/22238) of the bill to strengthen fair competition, in the interest of consumers and other market participants.
The primary objective of the legislative measures adopted is to improve protection against abusive warnings.
To this end, the draft law provides, among other things, for higher requirements regarding the power to assert claims, the reduction of financial incentives for warnings and more transparency as well as simplified possibilities for asserting counterclaims.
Furthermore, to strengthen competition in the market for mould-specific spare parts for complex products, such as automobiles, a repair clause will be introduced which restricts the design right for visible spare parts used for repair purposes.
This leads to changes in the following laws:
- Law against unfair competition (UWG)
- Injunctions Act (UKlaG)
- Court Costs Act (GKG)
- Copyright Act (UrhG)
- Law on the legal protection of design (DesignG)
Changes in UWG, UKlaG and GKG
There has been considerable criticism ahead of the planned restriction of the so-called “flying jurisdiction”. However, according to the explanatory memorandum to the draft bill, this is intended to protect small and medium-sized enterprises from other companies that specifically request interim injunctions from courts far away from their domicile/residence in order to make legal defence more difficult.
The draft also provides, inter alia, for an increase in the right of action of competitors but also of trade associations (cf. Section 8 (3) UWG-E). In addition, the possibility of asserting counterclaims is simplified (cf. Section 13 para. 5 UWG-E).
In the future, business associations will have to register with the Federal Ministry of Justice within the scope of an additional administrative procedure for an entitlement to assert claims under the UWG and UklaG. This relieves the courts from the task of examining the legal standing of trade associations. The new regulation in § 8 para. 3 UWG-E comes into force nine months after promulgation to enable the business associations to adapt to the new legal situation.
Changes in DesignG
The draft law also introduces a repair clause into German design law (cf. §40a DesignG-E), according to which mould-specific spare parts are not protected under design law. This leads to an opening of the secondary market for spare parts. For details regarding the new repair clause, I refer to the contribution of my colleague Susanna Heurung.
Changes in the UrhG
The UrhG only provides for minor adjustments. Among other things, in future, when sending a pre-formulated cease-and-desist declaration, it must be stated whether this declaration goes considerably beyond the asserted claim for injunctive relief.