Free competition between market participants requires general and binding rules to protect competitors, consumers and other market participants from unfair acts and practices and to allow free and fair competition on the merits. This is the purpose of competition law, which draws its legal basis essentially from the Act against Unfair Competition (UWG), as well as from European regulations or special legislation, such as the German Telemedia Act (TMG), the Pricing Ordinance (Preisangabenverordnung - PAngV) or the Book Price Act (Buchpreisbindungsgesetz - BuchPrG). As a rule, it is up to the market participants themselves to punish antitrust violations law.
Marketing law concerns a specific area of business activities, the aim of which is to promote and sell own products on the market as efficiently as possible. Various possibilities are available in this regard, which can be divided into online and offline marketing. For both forms of marketing, different legal conditions must be taken into account to avoid antitrust warnings from competitors or consumer associations.
Online and digital marketing, in particular, is the fastest growing and most exciting marketing area for many companies.. This is of course mainly due to the rapid pace of technological development and the almost endless related possibilities. However, precisely because of these innovations, many marketing departments and companies are operating without being aware of the consequences of a specific marketing activity. In many areas, competitive pressure often results in a company operating virtually on the border of what is permitted, or even beyond, in pursuing a chosen marketing activity. Especially when using trackers, cookies and social plugins, the legal requirements are not always clearly defined, which often leads to legal uncertainty. This is especially true in light of the EU General Data Protection Regulation in force since 25 May 2018. This legal field is facing further legal upheavals due to the ePrivacy Regulation announced for 2019. In this regard, all businesses should pay particular attention to the relevant case law and opinions of the authorities concerned.
When using 'marketing automation' tools, the special requirements of the Telemedia Act (TMG), which are already relevant during the planning, must be taken into account as well, especially if you create user profiles of your customers or website visitors.
In addition, email and telephone marketing play a considerable role in marketing. Both forms are governed by the specific requirements of the Law against Unfair Competition (UWG). For email advertising, the requirements of No. 3 of section 7(2) UWG must always be taken into account, meaning that for the purposes of email marketing, the sending of advertising without the prior express consent of the recipient always constitutes unacceptable harassment. The requirements for cold calls to customers pursuant to No. 2 of section 7(2) are similarly strict.
Websites are also a popular marketing tool. In this regard, legally compliant design must be ensured with due regard to the requirements of the Telemedia Act (TMG) and the Data Protection Regulation.
The same requirements also apply to online stores on selling platforms such as eBay or Amazon. On these platforms, the risk of being confronted with a warning letter in terms of competition law is particularly high if the website is not compliant.
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Due to ongoing advanced training and their widespread practical experience, our consultants are always up to date with current legal developments in the field of competition law and marketing law. In addition, we are regularly invited to speak on these topics at conferences and seminars and regularly publish contributions on issues or legislative changes that are relevant in practical terms in various specialist journals. If related legal areas are concerned, e.g. data protection law, IT-law or distribution law, we can rely on the expertise of colleagues specialising in these areas to offer our clients comprehensive legal services and assistance. For cross-border cases, we can rely on our colleagues in Italy and Poland, as well as on the law firms with whom we cooperate in the framework of the DIRO AG European network of lawyers, of which Derra, Meyer & Partner is a member.